Foreword

The Arkansas Freedom of Information Act (“FOIA”), Ark. Code Ann. §§ 25-19-101 to 25-19-109, was enacted in 1967 at the behest of Governor Winthrop Rockefeller and the state’s journalism community. At his last press conference, Governor Rockefeller described the FOIA as his “proudest achievement” in office.

Prior to the act’s passage, Arkansas law regarding access to government records and meetings was not well developed. While scattered sections of the Arkansas code provided for public inspection of certain records, there existed no comprehensive provision permitting access to documents held by state or local bodies. Nor was the common law much help, for the judicial decisions dealt principally with election records required by statute to be open to the public. Two cases, however, took a surprisingly broad view of the common law right of access to records. Collins v. State, 200 Ark. 1027, 143 S.W.2d 1 (1940); Republican Party of Arkansas v. State ex rel. Hall, 240 Ark. 545, 400 S.W.2d 660 (1966).

With respect to open meetings, state common law prior to enactment of the FOIA was nonexistent, but constitutional and statutory provisions afforded some access. Article V, Section 13 of the Arkansas Constitution of 1874, which remains in effect today, provides that “sessions of each house and of committees of the whole shall be open, unless when the business is such as ought to be kept secret.” The secrecy exception is obviously large enough to swallow the rule of openness, and the provision does not apply to legislative committees, state agencies, or local government bodies. The first open meetings statute, passed in 1947 and amended in 1949, did not extend beyond the state level and had various other shortcomings. A broader statute reaching such political subdivisions as cities, counties, and school districts was passed in 1953, but it contained a broad exception permitting closed meetings and penalty provisions applicable only in the event of willful violations. As a result, it, too, was relatively ineffective.

Several factors coalesced in the mid-1960s to bring about enactment of the FOIA: a campaign by state journalists, notably the Little Rock chapter of Sigma Delta Chi; a study by the Arkansas Legislative Council comparing state access laws with those of other jurisdictions; controversial closed meetings by government bodies; unfavorable Attorney General’s opinions interpreting the 1953 open meetings statute; organizational efforts by the state Republican Party, including successful litigation to obtain access to voting records; the Hall case cited above, in which the Arkansas Supreme Court indicated its willingness to recognize an expansive common law right of access to public records; and the election of Winthrop Rockefeller as governor.

The bill that became the Arkansas FOIA was drafted by the Little Rock chapter of Sigma Delta Chi and was based in part on statutes in other states and a model act prepared by the national Sigma Delta Chi organization. Governor Rockefeller signed the bill into law — Act 93 of 1967 — on Valentine’s Day, commenting that “this is an historic bill, and it may well be a model bill for other states.” The FOIA has been amended sixteen times since its enactment, most recently in 2001. None of the amendments has significantly weakened the act, and many were in response to judicial decisions or to specific problems that were not anticipated when the FOIA was initially passed. Act 1653 of 2001 addressed access to electronic records and provided welcome clarity with respect to other issues.

On numerous occasions, the General Assembly has enacted separate statutes creating specific exemptions rather than amend the FOIA itself. For example, in 1987 the legislature passed a statute designed to overturn an Arkansas Supreme Court decision holding that certain corporate tax records were not exempt from disclosure under the FOIA. See Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986). A bill amending the Tax Procedure Act to exempt from public disclosure “all tax returns, . . . whether filed by individuals, corporations, partnerships or fiduciaries,” was passed over the vocal opposition of the news media. This provision was amended in 1991 to permit access to records that reflect the name of a taxpayer and the amount of any tax credit, rebate, discount, or commission for the collection of a tax received by the taxpayer under specified state tax statutes. See Ark. Code Ann. § 26-18-303.

In 1999, the legislature created the Electronic Records Study Commission to examine the Arkansas Freedom of Information Act and recommend amendments to update the FOIA for the electronic age. The commission completed its work in time for the 2001 session of the General Assembly, and the vast majority of the commission’s recommendations, as variously amended during the legislative process, were enacted into law by Act 1653 of 2001. These changes clarify the FOIA on many, though certainly not all, issues surrounding electronic access. See infra part III.

I. Statute

A. Who can request records?

1. Status of requester

“[A]ny citizen of the State of Arkansas” may make a request. Ark. Code Ann. § 25-19-105(a)(1). However, incarcerated felons may not obtain records of the Department of Correction and the Department of Community Correction. Otherwise, the term “citizen” includes a corporation doing business in the state. Arkansas Hwy. & Transp. Dep’t v. Hope Brick Works Inc., 294 Ark. 490, 744 S.W.2d 711 (1988). This approach would also include partnerships and other unincorporated associations doing business in the state. Indeed, the Supreme Court has said that “anyone who requests information is entitled to it.” Bryant v. Weiss, 335 Ark. 534, 983 S.W.2d 902 (1998) (emphasis added). In the Bryant case, the Court held that a public official, in his official capacity, is a “citizen” for purposes of Section 25-19-105(a)(1). See also Ark. Op. Att’y Gen. No. 98-174 (civil service commissioners may obtain access to personnel and employee evaluation records under the FOIA). An agency may require identification showing name and address or completion of a form on which the requester provides citizenship information. Ark. Op. Att’y Gen. No. 94-235. The Attorney General has opined that a proxy may request records for a non-citizen, as long as that proxy is an Arkansas citizen. See Ark. Op. Att’y Gen. Nos. 2008-191, 97-071, 96-190.

2. Purpose of request

A requester’s purpose or motive in seeking access to records is usually immaterial. E.g., Ark. Op. Att’y Gen. Nos. 2003-325. See also Furman v. Holloway, 312 Ark. 378, 849 S.W.2d (1993) (rejecting argument that inmate had to show “particularized need” to inspect Department of Correction records, where neither statute governing access to those records nor administrative regulation contained such a requirement). However, the requester’s purpose for seeking access is apparently relevant when he or she seeks personnel records, which are exempt to the extent that their disclosure would cause a clearly unwarranted invasion of personal privacy. Ark. Code Ann. § 25-19-105(b)(12). See Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (requester’s “sole reason” for seeking access to home addresses of police officers was to “utilize a cheaper method of obtaining service of process on the officers” in a civil rights action, and this purpose “has little or nothing to do” with learning about “what [the] government is up to”); Ark. Op. Att’y Gen. No. 2001-091 (in applying personnel records exemption, custodian “may consider the purpose for which [the information] was requested and whether that purpose is consistent with the purposes of the FOIA”); Ark. Op. Att’y Gen. No. 98-152 (suggesting that employee’s home address and names of family members are exempt where information is requested for purpose of harassment or causing harm).

Only those records that “constitute a record of the performance or lack of performance of official functions” are public records. Ark. Code. Ann. § 25-19-103(5)(A). Records “maintained in public offices or by public employees within the scope of their employment” are presumed to be public records. Id. See also Pulaski County v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718, opinion after remand, 371 Ark. 217, 264 S.W.3d 465 (2007) (requiring trial court to conduct an in camera review of all e-mails of a county employee to determine if e-mails were public records under the FOIA).

3. Courts

Records of a “public official or employee” and a “governmental agency” are covered by the FOIA. Ark. Code. Ann. § 25-19-103(5)(A). While this definition reaches judges and the courts, application of the FOIA to the judicial branch would violate the separation of powers doctrine. Arkansas Newspaper Inc. v. Patterson, 281 Ark. 213, 662 S.W.2d 826 (1984); Ark. Op. Att’y Gen. No. 90-217. But see Ark. Op. Att’y Gen. No. 95-031. Although the public has a common-law right of access to judicial records, the courts have inherent authority to seal them in narrow circumstances, and statutes or court rules may also authorize closure. See Arkansas Best Corp. v. General Electric Capital Corp., 317 Ark. 238, 878 S.W.2d 708 (1994); Arkansas Dep’t of Human Services v. Hardy, 316 Ark. 119, 871 S.W.2d 352 (1994).

Even when a private entity’s records might be subject to disclosure under the FOIA, that private entity alone cannot be sued under the Act. Nabholz Construction Corp. v. Contractors for Public Protection Ass’n, 371 Ark. 411, 266 S.W.3d 689 (2007). Instead, the request must be directed to the public agency or entity covered by the Act. Id. However, a “simple ‘hand-off’ of documents” to private entities will not allow public agencies and entities to circumvent the FOIA by claiming the documents are not in their control. Id. at 419, 266 S.W.3d at 694.

(1) However, the mere receipt of public funds is not sufficient to bring a private entity within the FOIA; rather, the question is whether the private group carries on “public business” or is otherwise intertwined with the activities of government. City of Fayetteville v. Edmark, supra; Ark. Op. Att’y Gen. Nos. 2001-352, 2001-324, 2001-069, 2000-039, 99-090, 98-139, 97-148, 96-123, 96-116, 96-013, 94-023, 92-205. Compare Kristen Investment Properties v. Faulkner County Waterworks & Sewer Public Facilities Board, supra (FOIA applies to volunteer fire department that received fees from public fire protection district, as well as governmental loans, and “performed a service routinely provided by government”), with Sutton v. Ballet Arkansas Inc., CIV 00-3066 (Pulaski County Cir. Ct. 2000) (ballet company that received some financial support from the state and county was not subject to the FOIA because its activities “do not appear to be intertwined to a government function so much that its activities are tantamount to government action”). For example, a private attorney’s memo advising the city about upcoming litigation is a public record. City of Fayetteville v. Edmark, supra. However, private attorneys’ memoranda advising doctors at a public hospital are not public records when the attorney was paid by a private insurance company, and the doctors were being sued for medical malpractice. Harril & Sutter, PLLC v. Farrar, 2012 Ark. 180, 402 S.W.3d 511 (2012).

(2) A private entity that receives public funds for services rendered to a government agency is subject to FOIA when the services could have been performed by public employees. Swaney v. Tilford, 320 Ark. 652, 898 S.W.2d 462 (1995) (accounting firm); City of Fayetteville v. Edmark, supra (law firm); Kristen Investment Properties v. Faulkner County Waterworks & Sewer Public Facilities Board, supra (volunteer fire department). See, e.g., Ark. Op. Att’y Gen. Nos. 2008-154 (school bus contractor), 2005-067 (volunteer fire department), 2004-223 (nonprofit corporation that operates county hospital), 2000-260 (nonprofit economic development corporation that receives sales tax revenue), 2000-039 (nonprofit corporation that provides services for developmentally disabled individuals), 99-350 (probation records maintained by private contractor working for a municipal judge), 96-372 (volunteer fire department), 97-141 (attorney who contracted with county to collect court-imposed fines), 96-185 (private company that operates state prison), 96-116 (nonprofit corporation that leases hospital facility from county), 95-273 (area agency on aging, a nonprofit corporation, operates under close supervision and direction from the government and performs functions that would otherwise be performed by the government), 95-121 (chamber of commerce that provides services to city advertising and promotion commission), 94-023 (chamber of commerce engaged in economic development on city’s behalf), 92-220 (nonprofit corporation that operated public access cable channel under contract with city). Compare Ark. Op. Att’y Gen. Nos. 96-185 (construction company that builds state prison is not subject to FOIA), 95-353 (FOIA does not apply to nonprofit corporation that receives public funding to operate aerospace education center, where neither the corporation’s budget nor activities were subject to review by any government body), 83-163 (private hospital that receives Medicare and Medicaid payments is not subject to FOIA).

(3) The FOIA will generally be inapplicable to a private entity that sells supplies, equipment, and other products to a government agency. For example, the records in possession of a bank concerning credit cards issued to state employees for travel expenses probably would not be subject to disclosure under the FOIA. Ark. Op. Att’y Gen. No. 2003-064. With respect to services, there is little concern that government might circumvent the FOIA by hiring private contractors. However, this concern is not present when goods are involved, since government cannot produce all of the goods it needs to function and, as a practical matter, has no choice but to purchase materials from the private sector. Ark. Op. Att’y Gen. No. 96-123.

(5) A private organization that receives partial financial support from government is partially bound by FOIA requirements. Thus, the act applies only to records relevant to the task for which a private contractor is hired or a nonprofit corporation receives a government grant. City of Fayetteville v. Edmark, supra; Ark. Op. Att’y Gen. Nos. 2007-192, 2001-364, 96-290, 96-267, 96-185, 95-121.

(6) Records created or received by a private organization that no longer receives public funds after termination of such support are not subject to the FOIA, while records created or received during the funding period remain open to the public on a continuing basis. Ark. Op. Att’y Gen. Nos. 2007-210, 99-090, 99-157, 94-023, 92-220, 88-004.

Shortly after the FOIA’s passage, the Attorney General suggested that the act applies to a private entity whose board of directors includes government officials. Ark. Op. Att’y Gen. (April 16, 1971). That position is no longer tenable in light of the Supreme Court’s holding that only the direct receipt of public funds by a private organization triggers the act. Sebastian County Chapter of American Red Cross v. Weatherford, 311 Ark. 656, 846 S.W.2d 641 (1993).

As always, a separate, specific statutory mandate of confidentiality may supersede application of the FOIA. For example, the Interstate Commission for Adult Offender Supervision, created by interstate compact, is authorized to adopt by-laws that “establish conditions and procedures under which the [commission] shall make its information and official records available to the public for inspection or copying.” The commission “may exempt from disclosure any information or official records to the extent they would adversely affect personal privacy rights or proprietary rights” and “may enter into agreements with law enforcement agencies to receive or exchange information or records subject to nondisclosure and confidentiality provisions.” Ark. Code Ann. § 12-51-301(e)(3).

7. Others

C. What records are and are not subject to the act?

1. What kinds of records are covered?

All records “required by law to be kept or otherwise kept and that constitute a record of the performance or lack of performance of official functions” are public records. Ark. Code Ann. § 25-19-103(5)(A). Opinions issued by an agency that are not required by statute to be kept as records can constitute records “otherwise kept” and be subject to disclosure. See Ryan & Co. AR, Inc. v. Weiss, 371 Ark. 43, 263 S.W.3d 489 (2007) (gross receipt tax opinions issued by Department of Finance & Administration subject to disclosure with redaction of identifying information). Records “maintained in public offices or by public employees within the scope of their employment” are presumed to be public records. Id. In Orsini v. Beck, No. 98-1011, 2000 WL 426568 (Ark. 2000), the Supreme Court held that law library logs kept by a Department of Correction facility, which were “maintained by the prison to monitor the use of the library,” were presumed to be public records under Section 25-19-103(5)(A). See also Depoyster v. Cole, 298 Ark. 203, 766 S.W.2d 606 (1989) (ballots recording individual votes of members of governing body “obviously constitute a record of the performance or lack of performance of official functions”), overruled on other grounds byHarris v. City of Ft. Smith, 366 Ark. 277, 234 S.W.3d 875 (2006); Ark. Op. Att’y Gen. Nos. 97-244 (customer-specific records of municipal water system are public records), 97-406 (recordings of inmate telephone calls, which are routinely taped by prison officials, are public records within the meaning of the FOIA), 93-002 (document “proposing a course of action” by the action is within statutory definition).

(2) Under a 2001 amendment, “software acquired by purchase, lease, or license” is expressly excluded from the FOIA’s definition of “public record.” Ark. Code Ann. § 25-19-103(5)(B) (added by Act 1653 of 2001). Even before this amendment, it was doubtful that software fell within the definition, which provides that a record must reflect “the performance or lack of performance of official functions.” Id. § 25-19-103(5)(A). Moreover, if software had been considered a public record, it would most likely have been covered by the FOIA’s exemption for records which, if disclosed, “would give advantage to competitors.” Id. § 25-19-105(b)(9)(A).

(3) A record is subject to the act if it is in the physical possession or administrative control of an agency. See Swaney v. Tilford, 320 Ark. 652, 898 S.W.2d 462 (1995); City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990). When a private entity performs work for a public entity, the public entity cannot “hand off” its records to the private entity in an attempt to circumvent the FOIA. Nabholz Construction Corp. v. Contractors for Public Protection Ass’n, 371 Ark. 411, 266 S.W.3d 689 (2007).

(a) With respect to records physically located at an agency, the phrase “performance or lack of performance of official functions” limits the act’s reach, as does the “scope of employment” language. These terms suggest that personal notes and records of public employees are not subject to disclosure. Ark. Op. Att’y Gen. No. 91-374. See also Ark. Op. Att’y Gen. Nos. 2005-095 (personal e-mail created on public computer during working hours may be shielded from disclosure if shown to be personal in nature), 97-145 (records of faculty senate at state university are not public records unless the senate is “part of the official policy development process” at the institution). Records must have a “substantial nexus” with the government’s activities to classify as public records subject to FOIA. Pulaski County v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718, opinion after remand, 371 Ark. 217, 264 S.W.3d 465 (2007) (requiring trial court to conduct an in camera review of all e-mails of a county employee to determine if e-mails were public records under the FOIA).

(b) Because the act applies to records over which the agency has administrative control or constructive possession, the agency is obligated to acquire such records in response to an FOIA request. Costs incurred in obtaining the records must be borne by the agency, not the requester. Fox v. Perroni, 358 Ark. 251, 188 S.W.3d 881 (2004) (employee’s personal check, used to pay public expense, in possession of private bank); Swaney v. Tilford, supra.

(c) The fact that a public record is maintained outside the official’s office does not exempt it from the FOIA. Ark. Op. Att’y Gen. No. 2000-220 (constituent’s letter to an alderman, sent to the latter’s home and seeking some official action, is a public record).

2. What physical form of records are covered

The physical form of the record is unimportant, for the FOIA applies to “writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium.” Ark. Code Ann. § 25-19-103(5)(A). Act 1653 of 2001 added the phrase “electronic or computer-based information” to emphasize that the FOIA applies to such records, even though the prior version of the act was broad enough to cover them. See, e.g., Blaylock v. Staley, 293 Ark. 26, 732 S.W.2d 152 (1987) (computer tapes); Ark. Op. Att’y Gen. Nos. 2000-096, 99-018 (electronically stored e-mail). But see Nolan v. Little, 359 Ark. 161, 196 S.W.3d 1 (2004) (refusing to apply FOIA to seed sample, stored for testing by the State Plant Board, regardless of any “genetic information” the seed contained, where extracting information would require destruction of sample); Ark. Op. Att’y Gen. No. 91-323 (recording of executive session may not be a “record” for FOIA purposes, since it can be viewed as “the embodiment of the meeting”).

(1) The FOIA applies only to existing records, Swaney v. Tilford, 320 Ark. 652, 898 S.W.2d 462 (1995), and an agency “is not required to compile information or create a record” in response to a request. Ark. Code Ann. § 25-19-105(d)(2)(C) (added by Act 1653 of 2001). Similarly, there is no requirement for an agency “to answer interrogatories or to otherwise provide raw information.” Ark. Op. Att’y Gen. No. 2000-305.

(2) Nothing in the FOIA requires an agency to maintain records in a certain medium or format. Ark. Op. Att’y Gen. No. 97-030. Indeed, the act “does not itself provide that any particular records shall be kept.” McMahan v. Board of Trustees of the Univ. of Arkansas, 255 Ark. 108, 499 S.W.2d 56 (1973). However, a record that exists in multiple media or formats must be made available on request “in any medium in which the record is readily available or in any format to which it is readily convertible with the custodian’s existing software.” Ark. Code Ann. § 25-19-105(d)(2)(B) (added by Act 1653 of 2001).

3. Are certain records available for inspection but not copying?

As amended by Act 1653 of 2001, the FOIA gives citizens the right to “inspect, copy, or receive copies of public records.” Ark. Code Ann. § 25-19-105(a)(2)(A). Upon payment of any required fees, the agency must furnish copies if it has the necessary equipment. Id. § 25-19-105(d)(2)(A). Previously, public records were available for only “inspection and copying,” and there was no obligation on the part of the agency to provide copies or to make available duplicating equipment.

4. Telephone call logs

If telephone call logs are kept by a public agency, then those logs are subject to disclosure under the FOIA. Ark. Code Ann. § 25-19-103(5)(A). See also Ark. Op. Att’y Gen. No. 87-319 (stating that “a log of police calls” is “clearly encompasse[d]” by the FOIA).

5. Electronic records (e.g., databases, metadata)

Until its amendment in 2001, the FOIA did not expressly mention electronic records. However, it applied to “data compilations in any form,” and this provision reached electronic records. See, e.g., Blaylock v. Staley, 293 Ark. 26, 732 S.W.2d 152 (1987). See also Ark. Op. Att’y Gen. No. 99-018 (electronically stored e-mail messages are public records), 97-115 (FOIA applies to “computerized information”). In 1999, the General Assembly created the Electronic Records Study Commission to study public access to electronic information and recommend amendments to the FOIA for consideration by the legislature in 2001. The bill drafted by the ERSC formed the basis for Act 1653 of 2001, which included “electronic or computer-based information” within the FOIA’s definition of public record, Ark. Code Ann. § 25-19-103(5)(A), and made other changes to facilitate public access to data in electronic form. ’

a. Can the requester choose a format for receiving records?

Yes. A citizen “may request a copy of a public record in any medium in which the record is readily available or in any format to which it is readily convertible with the custodian’s existing software.” Ark. Code Ann. § 25-19-105(d)(2)(B) (added by Act 1653 of 2001).

b. Can the requester obtain a customized search of computer databases to fit particular needs

Not as a matter of right. However, the custodian “may agree to summarize, compile, or tailor electronic data in a particular manner or medium and may agree to provide the data in an electronic format to which it is not readily convertible.” Ark. Code Ann. § 25-19-109(a)(1) (added by Act 1653 of 2001). Custodians are encouraged to do so when “the cost and time involved in complying with the requests are relatively minimal.” Id. § 25-19-109(a)(2).

c. Does the existence of information in electronic format affect its openness?

No. As amended by Act 1653 of 2001, the FOIA defines the term “public record” to include “electronic or computer-based information.” Ark. Code Ann. § 25-19-103(5)(A). Thus, the question is whether the record is exempt from disclosure, not whether it is maintained in electronic form. However, the form of the record may affect the application of an exemption. For example, in Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), the Supreme Court recognized that an individual’s privacy interest in a tape recording is greater than his or her privacy interest in a transcript of that recording.

d. Online dissemination

The FOIA requires that a “state agency, board, or commission” make certain records “publicly accessible, without charge, in electronic form via the Internet.” Ark. Code Ann. § 25-19-108(b)(1). The custodian may respond to a FOIA request by directing the requestor to the specific Internet location of the information. Ark. Code Ann. § 25-19-108(b)(2).
There are five types of information that agencies, boards, and commissions must make available on the Internet. The first category of information is “[a] description of its organization, including central and field offices, the general course and method of its operations” as well as the organization’s “established locations” and contact information for those locations, including “telephone numbers and street, mailing, electronic mail, and internet addresses and the methods by which the public may obtain access to public records.” Ark. Code Ann. § 25-19-108(a)(1).
The second type of information that the organization must provide is “[a] list and general description of its records, including computer databases.” Ark. Code Ann. § 25-19-108(a)(2).
The third type of information that the organization must provide is “[i]ts regulations, rules of procedure, any formally proposed changes, and all other written statements of policy or interpretations formulated, adopted, or used by the agency, board, or commission in the discharge of its functions.” Ark. Code Ann. § 25-19-108(a)(3)(A). Only items “that directly affect procedure and decision-making” are included in this category. Ark. Code Ann. § 25-19-108(a)(3)(B)(i). The FOIA exempts the following types of information from this rule: “[p]ersonnel policies, procedures, and internal policies” and “[s]urveys, polls, and fact-gathering for decision-making.” Ark. Code Ann. § 25-19-108(a)(3)(B)(ii)–(iii). Additionally, “[s]tatistical data furnished to a state agency shall be posted only after the agency has concluded its final compilation and result.” Ark. Code Ann. § 25-19-108(a)(3)(B)(iv).
The fourth type of information that the organization must make available online is “[a]ll documents composing an administrative adjudication decision in a contested matter, except the parts of the decision that are expressly confidential under state or federal law.” Ark. Code Ann. § 25-19-108(a)(4).
Finally, all records that the organization determines are or will likely become “the subject of frequent requests” must be provided on the Internet, “regardless of medium or format.” Ark. Code Ann. § 25-19-108(a)(5).

10. Can a requester ask for the creation or compilation of a new record?

D. Fee provisions

1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

Unless a specific statutory provision authorizes a higher fee, “any fee for copies shall not exceed the actual costs of reproduction, including the costs of the medium of reproduction, supplies, equipment, and maintenance, but not including existing agency personnel time associated with searching for, retrieving, reviewing, or copying the records.” Ark. Code Ann. § 25-19-105(d)(3)(A)(i) (added by Act 1653 of 2001). The custodian may also charge “the actual costs of mailing or transmitting the record by facsimile or other electronic means.” Id. § 25-19-105(d)(3)(A)(ii). An itemized breakdown of all charges must be provided to the requester. Id. § 25-19-105(d)(3)(B).

2. Particular fee specifications or provisions

Ark. Code Ann. § 27-50-909(a)(2) (Office of Driver Services may charge $10.00 to employers or prospective employers or $7.00 to other citizens, an amount set by Ark. Code Ann. § 27-23-117, for search of drivers’ records).
Ark. Code Ann. § 7-5-109(b) (county clerk may charge a fee for the reproduction of voter registration lists, based on cost of reproduction); § 7-5-109(c) (setting fee for computerized lists of registered voters from $10 to $50, depending on the number of voters on the list); § 14-55-402(b) (city clerk may charge for copies of ordinances at same rate allowed circuit clerks for copies); § 21-6-202(a)(7) ($0.80 per page for copies of records of Secretary of State); § 21-6-202(a)(8) (Secretary of State may set fee for copies of maps and similar documents, based on clerical labor and paper costs); § 21-6-401(c)(3) ($0.50 per page for copies of Supreme Court records); § 21-6-402(11) (circuit clerks may charge $1.50 per page for copies of transcripts); § 27-19-406(b) ($0.50 per page for abstracts of driver records under Motor Vehicle Safety Responsibility Act); § 27-53-210(b)(1) and § 27-53-210(c)(1) ($10.00 for copy of state and local law enforcement motor vehicle accident report).

3. Provisions for fee waivers

As amended by Act 1653 of 2001, the FOIA provides that “[c]opies may be furnished without charge or at a reduced charge if the custodian determines that the records have been requested primarily for noncommercial purposes and that waiver or reduction of the fee is in the public interest.” Ark. Code Ann. § 25-19-105(d)(3)(A)(iv).

5. Have agencies imposed prohibitive fees to discourage requesters?

Practices under the prior law, which neither required copying nor addressed copying fees, do not suggest that agencies have imposed prohibitively high copying charges to discourage requesters. A 1999 survey by media organizations revealed that charges for document copies ranged from free to $1.00 per page. See The FOIArkansas Project (1999), available online at http://www.FOIArkansas.com. Earlier, one small city attempted to set fees for copying topographical maps at a level above the actual cost of duplication in an effort to recoup the cost of developing the records, to defray the cost of maintaining and upgrading them, and to reflect their perceived commercial value. See “City Can’t Profit from Sale of Documents, Judge Says,” Morning News of Northwest Arkansas (Oct. 19, 1995), p. 3A.

6. Fees for electronic records

E. Who enforces the Act?

1. Attorney General's role

The Attorney General over the years has issued hundreds of opinions interpreting the FOIA. These are advisory opinions, not binding on Arkansas courts. As a practical matter, Arkansas courts frequently cite to Attorney General opinions when reaching FOIA decisions. The Attorney General is authorized by statute to render legal opinions at the request of certain public officials, including members of the General Assembly, all state boards and commissions, the heads of executive departments, and prosecuting attorneys. Ark. Code Ann. § 25-16-706. Furthermore, the FOIA itself provides for Attorney General opinions in cases involving personnel and job evaluation records: “Either the custodian, requester, or the subject of the records may immediately seek an opinion from the Attorney General, who, within three (3) working days of receipt of the request, shall issue an opinion stating whether the decision is consistent with this chapter. In the event of a review by the Attorney General, the custodian shall not disclose the records until the Attorney General has issued his opinion.” Ark. Code Ann. § 25-19-105(c)(3)(B).

The Attorney General also has a power of enforcement in case of FOIA non-compliance. The courts have regarded the Attorney General as a “citizen” entitled to employ the FOIA. Bryant v. Weiss, 335 Ark. 534, 983 S.W.2d 902 (1998). Thus the Attorney General may file a repeat request denied to another citizen, and if the request is again denied, the Attorney General may bring a civil suit under the FOIA, effectively standing in the shoes of the original requester.

2. Availability of an ombudsman

3. Commission or agency enforcement

F. Are there sanctions for noncompliance?

The FOIA provides for both criminal and civil enforcement. The FOIA’s criminal sanctions are found in Section 25-19-104, which provides that “[a]ny person who negligently violates any provisions of this [act] shall be guilty of a Class C misdemeanor.” A Class C misdemeanor is punishable by a fine of up to $500, imprisonment for up to 30 days, or both. Ark. Code Ann. §§ 5-4-104, -201, -401. The FOIA’s civil process is found in Section 25-19-107 and permits civil suits to enforce the FOIA. Section 25-19-107(c) empowers courts to find guilty of contempt persons who fail to comply with court orders, and Section 25-19-107(d) allows an award of attorney fees to a “substantially prevail[ing plaintiff] unless the court finds that the position of the defendant was substantially justified or that other circumstances make an award of these expenses unjust.”

G. Record-holder obligations

1. Search obligations

2. Proactive disclosure requirements

The FOIA requires state agencies, boards, and commissions to prepare and make available the following information:

A description of its organization, including central and field offices, the general course and method of its operations, and the established locations, including, but not limited to, telephone numbers and street, mailing, electronic mail, and internet addresses and the methods by which the public may obtain access to public records;

A list and general description of its records, including computer databases;

Its regulations, rules of procedure, any formally proposed changes, and all other written statements of policy or interpretations formulated, adopted, or used by the agency, board, or commission in the discharge of its functions.

Rules, regulations, and opinions used in this section shall refer only to substantive and material items that directly affect procedure and decision-making.

Personnel policies, procedures, and internal policies shall not be subject to the provisions of this section.

Surveys, polls, and fact-gathering for decision-making shall not be subject to the provisions of this section.

Statistical data furnished to a state agency shall be posted only after the agency has concluded its final compilation and result;

All documents composing an administrative adjudication decision in a contested matter, except the parts of the decision that are expressly confidential under state or federal law; and

Copies of all records, regardless of medium or format, released under § 25-19-105 which, because of the nature of their subject matter, the agency, board, or commission determines have become or are likely to become the subject of frequent requests for substantially the same records.

Ark. Code Ann. § 25-19-108(a). If this information was compiled or created after July 1, 2003, it must be made publicly available, free of charge, online. Ark. Code Ann. § 25-19-108(b)(1).

3. Records retention requirements

The FOIA does not require a specific retention period for public records. Daugherty v. Jacksonville Police Dept., 2012 Ark. 264, 411 S.W.3d 196 (2012) (holding that police department did not violate the FOIA when it destroyed dash-cam recording after 45 days, pursuant to its normal record-retention policy).

The act’s exemptions are mandatory. See Ark. Code Ann. § 25-19-105(b) (records in exempt categories “shall not be deemed to be made open to the public”). Thus, an agency may not disclose records that fall within an exemption absent a court order, subpoena, or written consent of the person whose rights are protected by the exemption. Ark. Op. Att’y Gen. Nos. 99-334, 91-374, 91-323.

Although the exemptions are not patterned on the federal FOI act, there is some common ground. In those situations, federal case law will likely be persuasive. E.g., Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (citing federal cases in construing exemption for personnel records, which are exempt only to the extent that their disclosure would constitute a “clearly unwarranted invasion of personal privacy”); Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (same).

2. Discussion of each exemption

(1) State income tax records. Ark. Code Ann. § 25-19-105(b)(1). This exemption covers more than just income tax returns of individuals. See, e.g., Ark. Op. Att’y Gen. No. 91-093 (payroll records indicating amount withheld from an employee’s paycheck for state income taxes). However, it does not apply to records pertaining to other state taxes, such as the sales tax, or to tax records of political entities other than the state. Some of these other tax records are exempt under other statutes. E.g., Ark. Code Ann. § 26-18-303 (forbidding disclosure of state tax records maintained by Department of Finance & Administration, with certain enumerated exceptions).

(a) The exemption for “medical records” is limited to specific medical information about individuals, such as test results, employee health reports, and workers’ compensation records that reflect the nature and cause of an injury. Ark. Op. Att’y Gen. Nos. 95-262, 87-135, 87-070. The records must be related to the treatment or diagnosis of a medical condition. Ark. Op. Att’y Gen. Nos. 2000-232, 2000-226, 99-110, 99-042, 98-261, 98-202, 96-203, 91-374. Consequently, records that identify persons who received money from a county indigent care fund do not qualify, Ark. Op. Att’y Gen. No. 89-147, nor do hospital billing records. Ark. Op. Att’y Gen. No. 91-208. Also, statements by medical personnel to law enforcement officers will typically not be exempt. Ark. Op. Att’y Gen. No. 99-110. Ambulance records that include the patient’s medical history and a paramedic’s evaluation are exempt, as are home health care records. Ark. Op. Att’y Gen. Nos. 99-110, 96-203. Autopsy reports prepared by the State Medical Examiner are not considered medical records; however, these records are confidential under Ark. Code Ann. § 12-12-312(a) so long as they remain in the possession of the state crime lab. Once they leave the custody of the crime lab, however, the reports are subject to the FOIA unless another exemption, such as the act’s law enforcement exemption, Ark. Code Ann. § 25-19-105(b)(6), is applicable. See Ark. Op. Att’y Gen. Nos. 2001-100, 99-110, 97-294, 87-353. If the autopsy report is prepared by someone other than the State Medical Examiner, the crime lab confidentiality statute would not apply. Ark. Op. Att’y Gen. Nos. 97-294 (autopsy report that was never in possession of crime lab is subject to disclosure), 87-135 (autopsy report of coroner qualified to conduct post mortem tests is available under FOIA unless otherwise exempted).

(b) There are apparently no cases construing the exemption for adoption records; the Supreme Court has simply recognized that it exists. Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994). In 1978, the Attorney General opined that the exemption did not apply to records containing the names and addresses of foster families. Ark. Op. Att’y Gen. No. 78-108. However, another statute exempts records compiled or received by a state agency in placing a child for adoption, including foster care records. Ark. Code Ann. § 9-28-407(h) (as amended by Act 1211 of 2001). This statute and others dealing specifically with adoption records are independent exemptions to the FOIA. See, e.g., Ark. Code Ann. §§ 9-9-217, 9-9-406, 9-9-506.

(c) As amended by Act 1653 of 2001, Section 25-19-105(b)(2) exempts “education records as defined in the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, unless their disclosure is consistent with the provisions of [that act].” Previously, the FOIA used the term “scholastic records,” which may have been narrower in scope than the definition of “education records” in FERPA. The 2001 amendment makes the exemption coextensive with FERPA, which defines “education records” as “records, files, documents and other materials which . . . contain information directly related to a student; and . . . are maintained by an educational agency or institution or by a person acting for such agency or institution.” 20 U.S.C. § 1232g(a)(4)(A). See Ark. Op. Att’y Gen. No. 2001-154 (name of student and other personally identifying information in letter is within the FERPA definition and thus exempt from disclosure under Section 25-19-105(b)(2)).

Certain records are excluded from the FERPA definition, e.g., records of instructional personnel and records created by a law enforcement unit of the institution or agency for law enforcement purposes. Id. § 1232g(a)(4)(B). Moreover, so-called “directory information” — a student’s name, address, telephone number, date and place of birth, major field of study, participation in school activities and sports, weight and height of members of athletic teams, degrees and awards received, and other schools attended — is not covered by the act, although a student may specifically request that the institution or agency not disclose such information without his or her prior consent. Id. § 1232g(a)(5)(A) & (B). Under a 1998 amendment, some disciplinary records of students at institutions of postsecondary education may be disclosed. Id. § 1232g(b)(6).

(3) Historical and archeological files. Ark. Code Ann. § 25-19-105(b)(3). This provision exempts the “site files and records maintained by the Arkansas Historic Preservation Program and the Arkansas Archeological Survey.” It was apparently designed to prevent the disclosure of information that would create a risk of destruction or harm to historic sites or objects. Ark. Op. Att’y Gen. No. 86-213.

(4) Grand jury minutes. Ark. Code Ann. § 25-19-105(b)(4). This exemption states only that grand jury “minutes” are not to be disclosed and may therefore not apply to other grand jury records. The term “minutes” apparently includes any record reflecting what transpired before the grand jury, including documentary evidence received and a summary or verbatim transcript of testimony. See Davis v. Kirby, 244 Ark. 142, 424 S.W.2d 149 (1968). However, the grand jury’s use of a public record in deliberations does not affect its status as a public document. See Collins v. State, 200 Ark. 1027, 143 S.W.2d 1 (1940).

(5) Judicial and quasi-judicial drafts. Ark. Code Ann. § 25-19-105(b)(5). This provision, which exempts “[u]npublished drafts of judicial or quasi-judicial opinions,” is designed to shield draft opinions of the courts and those administrative agencies that act in a quasi-judicial capacity. However, it does not extend to other types of preliminary materials prepared by agencies, such as proposals, draft guidelines, or memoranda. Ark. Op. Att’y Gen. No. 91-175.

(6) Law enforcement records. Ark. Code Ann. § 25-19-105(b)(6). This exemption applies to “[u]ndisclosed investigations by law enforcement agencies of suspected criminal activity.” For a more thorough discussion, see part IV.N.4, infra, of this outline.

(7) Unpublished memoranda, working papers, and correspondence. Ark. Code Ann. § 25-19-105(b)(7). This provision exempts “[u]npublished memoranda, working papers, and correspondence of the Governor, members of the General Assembly, Supreme Court Justices, Court of Appeals Judges, and the Attorney General.”

(a) The exemption applies to records of the specified officials, their staffs, and outside consultants. Bryant v. Mars, 309 Ark. 480, 830 S.W.2d 869 (1992). But see Legislative Joint Auditing Committee v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987) (working papers of employees of a legislative committee are not within the exemption); Ark. Op. Att’y Gen. No. 95-128 (research files and rough drafts of the governor’s advisory committee on the state constitution are not working papers of the governor). It is clear that the working papers, memoranda, and correspondence of state administrative agencies, cities, counties, and school districts are not exempt. Arkansas Hwy. & Transp. Dep’t v. Hope Brick Works Inc., 294 Ark. 490, 744 S.W.2d 711 (1988). The exemption is applicable to records of the Lieutenant Governor generated during his or her service as acting governor, but not otherwise. Ark. Op. Att’y Gen. No. 95-277.

(b) With respect to the Governor, the Attorney General has opined that the exemption “should not be construed to apply to the work product of all executive branch employees, even when they are working on projects of interest to the Governor.” If that were the case, “the FOIA would, in effect, become inapplicable to the executive branch of government.” Rather, the exemption should apply “only if it is established, as a factual matter, that the individuals who generated the documents work for the Governor and serve in a representative capacity or relationship similar to that served by members of the Governor’s staff such that the case of Bryant v. Mars will support the exemption.” Ark. Op. Att’y Gen. No. 97-369. In Bryant, the Supreme Court held that the exemption applied to the working papers of Assistant Attorneys General and consultants retained by the Attorney General’s Office.

(c) Although unpublished memoranda, working papers, and correspondence are not available under the FOIA from an official or staff member covered by the exemption, the same documents are not exempt when in the hands of a person to whom the exemption does not apply. Ark. Op. Att’y Gen. Nos. 95-128, 93-166, 92-346. The term “unpublished” is given its usual meaning, i.e., “issued, put into circulation, or made publicly known.” Ark. Op. Att’y Gen. No. 92-129 (letter from state senator to deputy prosecutor in regard to criminal defendant was published and thus not within exemption).

(d) Except for the Attorney General, his or her staff, and outside consultants, the exemption does not apply to litigation files and similar records of lawyers who represent government bodies, such as city and county attorneys, law firms retained by cities and school districts, and staff counsel at state agencies. City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990); Arkansas Hwy. & Transp. Dep’t v. Hope Brick Works Inc., supra. Neither the attorney-client privilege nor the work-product doctrine create exemptions to the FOIA. Scott v. Smith, 292 Ark. 174, 728 S.W.2d 515 (1987). However, documents of some government attorneys might be protected from disclosure by another statute. E.g., Ark. Code Ann. § 23-42-207(b)(2) (work product and other communications of Securities Commissioner and staff lawyers are confidential). Litigation files of attorneys representing doctors in public hospitals are not public records subject to disclosure when the attorneys are paid by private medical-malpractice insurance carriers. Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, 402 S.W.3d 511 (2012).

(a) Without this exemption, the FOIA would likely be unconstitutional as applied to the courts. See Arkansas Newspaper Inc. v. Patterson, supra (exemption “prevents any entanglement in the separation of powers doctrine”).

(b) The order or rule must specifically require confidentiality. In Scott v. Smith, 292 Ark. 174, 728 S.W.2d 515 (1987), the Supreme Court held that Rule 502 of the Rules of Evidence (the attorney-client privilege) and Rule 26(b)(3) of the Rules of Civil Procedure (the work-product doctrine) do not fall within this exemption, since neither deals directly with the question of disclosure under the FOIA.

(c) A trial court has “inherent authority to protect the integrity of the court in actions pending before it” and may issue “appropriate protective orders” exempting records from the FOIA. City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990). For example, a trial court may seal documents filed with the court to prevent prejudicial pretrial publicity, Arkansas Newspaper Inc. v. Patterson, supra, and enter an order forbidding disclosure of police files to protect a criminal defendant’s right to a fair trial. Arkansas Gazette Co. v. Goodwin, 304 Ark. 204, 801 S.W.2d 284 (1990). A trial court hearing an FOIA case must “give credit” to protective orders issued by another court but may not use this exemption to enter its own order preventing access to records that would otherwise be available for public inspection. City of Fayetteville v. Edmark, supra.

(9)(A) Competitive advantage. Ark. Code Ann. § 25-19-105(b)(9)(A). This exemption covers “[f]iles which, if disclosed, would give advantage to competitors or bidders.” It protects trade secrets and other proprietary information collected by governmental entities in the course of their activities and may, in some circumstances, shield records which, if made public, would put government itself at a competitive disadvantage. A state agency may assert this exemption on behalf of the person who submitted the information at issue to the agency. The exemption neither excludes documents “owned by the state” nor requires the state “to possess a proprietary interest in the [records] for the exception to apply[.]” Arkansas Dep’t of Finance & Admin. v. Pharmacy Associates Inc., 333 Ark. 451, 970 S.W.2d 217 (1998). The party resisting disclosure bears the burden of proof. Gannett River States Pub. Co. v. Arkansas Industrial Development Comm’n, 303 Ark. 684, 799 S.W.2d 543 (1990).

(a) Although the exemption does not use the term “trade secrets,” disclosure of such information would plainly give advantage to competitors or bidders. See Miller v. Fairfield Bay Inc., 247 Ark. 565, 446 S.W.2d 660 (1969) (describing trade secret as a formula, method or device “that gives one an advantage over competitors”). In deciding whether a record contains a trade secret, courts will likely look for guidance to cases interpreting the Trade Secrets Act, Ark. Code Ann. §§ 4-75-601 to -607. See, e.g., Allen v. Johar Inc., 308 Ark. 45, 823 S.W.2d 824 (1992) (equipment designs and customer lists are both trade secrets). If a record is determined to be a trade secret, competitive harm should be presumed and the record deemed exempt. See Ark. Op. Att’y Gen. No. 95-106.

(b) If the information is not a trade secret, exemption applies if it can be shown that public disclosure is “likely to cause substantial harm to [the] competitive position” of the person or entity that has provided commercial or financial information to the agency. Arkansas Dep’t of Finance & Admin. v. Pharmacy Associates Inc., supra, quoting National Parks & Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974). Compare Leathers v. W.S. Compton Co. Inc., 316 Ark. 10, 870 S.W.2d 710 (1994) (interpreting an identical tax code provision that was based on the FOIA as requiring confidentiality if disclosure of certain tax records would give any advantage to a competitor). The exemption also applies if disclosure of the records would impair the government’s ability to obtain the information in the future. Ark. Op. Att’y Gen. Nos. 97-071, 93-254, 87-473.

(c) The Attorney General has emphasized that “[e]very business has its unique characteristics which, if revealed, may or may not give advantage to a competitor.” Ark. Op. Att’y Gen. No. 87-194. This determination is made on a case-by-case basis, with the submitter having the burden of proof. Ark. Op. Att’y Gen. Nos. 97-071, 94-015, 91-390. See, e.g., Ark. Op. Att’y Gen. Nos. 98-026 (records obtained by Livestock & Poultry Commission from poultry companies pursuant to federal requirements probably fall within the exemption, because “the nature of the information . . . appears to be particularly susceptible to misuse by competitors”), 96-363 (amount of tax credit and identity of recipients under low income housing program are probably not exempt, once the building has been placed in service and the final tax credit determined), 96-301 (submissions by professionals being considered for work on county project may be exempt), 96-229 (policy and procedure manual prepared by firm working under contract with state agency is probably not exempt), 95-414 (records reflecting hotel and restaurant taxes paid by specific business entity may be exempt), 95-106 (contracts and other documents detailing the delivery of services or supplies may be exempt), 94-015 (customer lists are exempt), 93-254 (customer lists and records that reflect pricing structure are exempt), 92-156 (payroll records and wage rates may be exempt), 88-113 (exemption not likely to apply to records of Arkansas Forestry Commission pertaining to farming operations of individual landowners), 88-065 (customer lists are exempt), 87-259 (city tax records based on gross receipts or sales could qualify), 87-194 (county tax assessment records might be exempt), 84-127 (information submitted by utilities to Public Service Commission are not exempt), 84-042 (financial reports obtained by Transportation Commission in regulating common carriers are not exempt), 83-190 (financial data furnished to Arkansas Economic Development Commission in connection with grant application may be exempt), 82-148 (records of exploratory activities gathered by the Commission on Pollution Control and Ecology are exempt).

(d) Unlike the federal FOI act, which exempts “trade secrets and commercial or financial information obtained from a person,” the Arkansas exemption appears to apply to any record, regardless of its source, if its disclosure would give advantage to a competitor. In some circumstances, government entities, as well as private organizations subject to the FOIA, could well be placed at a competitive disadvantage if records that they have generated are made public. Thus a circuit court held the exemption applicable to certain fund-raising activities of a state university that competes with other colleges for donations from the private sector. Arkansas Times Ltd. P’ship v. University of Arkansas, No. CV-2002-7175 (Pulaski County Cir. Ct. 2002). See also Ark. Op. Att’y Gen. Nos. 97-048 (exemption could apply to records of state university hospital), 95-108 (exemption is potentially applicable where disclosure of records would have adverse competitive impact on a city).

(e) A brief passage in City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990), suggests that the competitive advantage exemption applies only if a competitor requests the records. Under this interpretation, an agency could not invoke the exemption when the news media files an FOIA request. Surely this is not the law, for the issue is not the identity of the requester but whether competitors would benefit if the information becomes public. An earlier decision, Gannett River States Pub. Co. v. Arkansas Industrial Development Comm’n, supra, reflects proper application of this exemption. There a newspaper sought access to agency records concerning a company that planned to locate a steel mill in the state. In remanding the case for further proceedings, the Supreme Court held that the trial judge should examine the records in camera and make evidentiary findings as to whether their disclosure would give advantage to the company’s competitors.

(f) Insofar as harm to bidders is concerned, the exemption is designed to protect the integrity of the bidding process for government contracts. Obviously, a potential bidder should not be able to obtain, prior to the deadline for submission, a copy of bids already filed. But even after the bids have been opened, disclosure of financial information may have an adverse impact if it is so detailed that other companies could use it to estimate the successful bidder’s costs and thus possibly undercut his bids on future projects. Arkansas Dep’t of Finance & Admin. v. Pharmacy Associates Inc., supra. Moreover, disclosure of a bidder’s confidential financial information “would have the effect of diminishing the prospect of original and candid bids in the future.” Id. The exemption could also come into play apart from the bidding process itself. See, e.g., Ark. Op. Att’y Gen. No. 92-156 (wage rate information obtained by labor department from companies that had participated in sealed bidding might be exempt).

(9)(B) Arkansas Economic Development Commission. Ark. Code Ann. § 25-19-105(b)(9)(B). This provision, which was intended to further the state’s interest in economic development, covers records maintained by the commission relating to “any business entity’s planning, site location, expansion, operations, or product development and marketing,” unless the business entity consents to disclosure. The exemption remains applicable when the commission furnishes the records to another public entity. Ark. Op. Att’y Gen. No. 95-108. However, similar records of city or county economic development agencies do not fall within the exemption. Id. Other commission records are exempt under specific statutes. E.g., Ark. Code Ann. § 15-4-606 (applications and related documents submitted under Industrial Revenue Bond Law). A comprehensive statutory system for the development of economic “super projects,” id. §§ 15-4-3201 to -3224, extends the AEDC privilege to certain state and local entities insofar as they handle and prepare records pursuant to their “powers, duties, and obligations” under the system, id. § 15-4-3222.

(10) Undercover law enforcement officers. Ark. Code Ann. § 25-19-105(b)(10). This exemption protects the “identities of law enforcement officers currently working undercover with their agencies and identified in the Arkansas Minimum Standards Office as undercover officers.” By its own terms, the exemption does not cover records of the number of undercover officers that a law enforcement agency has listed. Moreover, it does not apply to former undercover officers who are no longer employed. Ark. Op. Att’y Gen. No. 96-005.

(11) Computer Security Measures. Ark. Code Ann. § 25-19-105(b)(11). Added by Act 1653 of 2001, this exemption covers “[r]ecords containing measures, procedures, instructions, or related data used to cause a computer or a computer system or network, including telecommunication networks, or applications thereon, to perform security functions, including, but not limited to, passwords, personal identification numbers, transaction authorization mechanisms, and other means of preventing access to computers, computer systems or networks, or any data residing therein.” See Ark. Op. Att’y Gen. No. 2003-064 (opining that credit card account numbers and agency identification numbers are exempt because their disclosure could “result in the type of security breach that this exemption was apparently intended to prevent”).

(12) Personnel and evaluation records. Ark. Code Ann. § 25-19-105(b)(12) & (c)(1). Under subsection (b)(12), personnel records are exempt from the FOIA “to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.” If, however, the personnel records in question are “employee evaluation or job performance records,” a different standard applies. Subsection (c)(1) provides that such records are open for public inspection only if a final administrative decision has been made to terminate or suspend the employee, the evaluation records formed a basis for that decision, and there is a “compelling public interest” in disclosure. Under Ark. Code Ann. § 25-19-105(c)(2), an employee or former employee has the right to examine his or her own personnel and evaluation records, even though they are exempt from disclosure to the public. However, this special right of access does not apply to records exempt from disclosure by virtue of the FOIA or another statute, Ark. Op. Att’y Gen. No. 98-223, or records concerning another employee that may have been placed in the requester’s own personnel file, unless they can also be characterized as personnel, evaluation, or job performance records of the requester. See Ark. Op. Att’y Gen. Nos. 2000-058, 95-131.

(a) Personnel Records

(i) Although there is no definition in the FOIA, the Attorney General has consistently taken the position that the term “personnel records” includes virtually all records pertaining to individual employees and former employees, with the exception of evaluation and job performance records. Ark. Op. Att’y Gen. Nos. 2001-152, 2000-257, 2000-232, 2000-130, 99-244, 99-148, 99-042, 99-040. See, e.g., Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (records of police promotional examination); Ark. Op. Att’y Gen. Nos. 2001-152 (unsolicited complaints about public school employee), 2001-120 (travel records), 99-147 (exit interview documents), 99-040 (change of status forms, memorandum reflecting employee transfer, emergency contact form, letters reflecting conditions of employment and standard probationary period), 98-223 (records that employee is required to prepare, complete, and sign as part of his or her departure from service), 98-126 (time cards), 98-001 (complaint alleging sexual harassment), 97-331 (pension and employee benefit records), 97-034 (list of employees who attended firearms training course), 97-070 (worker’s compensation documents, grievance records), 96-205 (salary history), 96-142 (resumes, interview notes, letters of recommendation, transfer records, insurance forms, legal documents), 96-088 (letter of resignation), 95-256 (pre-employment background investigation), 92-132 (records reflecting vacation time and sick leave), 91-003 (leave records), 90-335 (lists of names and addresses of employees), 88-224 (payroll records). Compare Ark. Op. Att’y Gen. No. 94-391 (college administrator’s letter in response to a complaint filed with an accrediting body is not a personnel record, even though it mentions an employee). Documents that contain information about employees of other agencies are apparently not considered personnel records for purposes of the exemption. See Ark. Op. Att’y Gen. No. 92-145 (teacher employment contracts maintained in office of county treasurer, as required by statute, are not personnel records). Records that do not pertain to individual employees, but rather discuss the employees as a group, are not covered by the exemption. Ark. Op. Att’y Gen. No. 96-258.

(ii) Whether the records of unsuccessful job applicants are personnel records remains an open question. In the past, the Attorney General’s Office has taken the position that records of job applicants are not personnel records because potential employees are not personnel. E.g., Ark. Op. Att’y Gen. Nos. 98-102, 90-248. More recent opinions, however, treat the question as open. Ark. Op. Att’y Gen. Nos. 2005-004 n.1, 99-002. Two circuit courts have split on the issue. If the applicant is successful, his or her job application, resume, and related materials are clearly personnel records. Ark. Op. Att’y Gen. Nos. 2005-004, 97-042, 96-190, 95-244, 95-113, 94-187. The same is true for applicants for promotion or for a different government position. Ark. Op. Att’y Gen. Nos. 2005-004, 96-142, 88-133.

(iv) The test for determining whether personnel records are exempt is objective, and the fact that the employee may consider release of the information invasive of his or her privacy is not relevant. Ark. Op. Att’y Gen. Nos. 2005-058, 2003-027, 2001-169, 98-152, 98-101, 98-001, 97-079, 97-034, 96-222, 96-193. In Young v. Rice, supra, the Supreme Court made plain that a two-step balancing process is to be employed, with the scales tipped in favor of disclosure. The Court subsequently refined this approach in Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998).

The first issue is whether the information is of a personal or intimate nature sufficient to give rise to a substantial privacy interest. If that is so, the issue becomes whether that privacy interest is outweighed by the public’s interest in disclosure. Young v. Rice, supra. The Attorney General has opined that there is no need to proceed to the second step if the privacy interest is de minimis. Ark. Op. Att’y Gen. Nos. 95-220, 95-169, 93-131. A substantial privacy interest, the Court said in Young, exists in records that reveal “the intimate details of a person’s life, including any information that might subject the person to embarrassment, harassment, disgrace, or loss of employment or friends.” Such a privacy interest can exist even if the subject of the records is deceased, although in some cases the individual’s death may affect the outcome of the balancing process. Ark. Op. Att’y Gen. Nos. 96-368.

In Stilley v. McBride, supra, the Supreme Court held that the “public interest” inquiry requires a determination that the records at issue would shed some light on the workings of government, since the purpose of the FOIA is to enable citizens to learn “what their government is up to.” That purpose is not served by disclosure of information about private citizens that reveals little or nothing about an agency’s own conduct.

The Supreme Court concluded in Young v. Rice, supra, that tape recordings made of candidates during a police department promotional examination were exempt, pointing out that disclosure would reveal “embarrassing behaviors,” could “subject the candidates to embarrassment,” and could “perhaps threaten their future employment.” Similarly, the Court held in Stilley v. McBride, supra, that records showing the home addresses of police officers were exempt. In that case, an attorney sought access to the records so that he could mail the summons and complaint to two officers against whom he had filed a civil rights action. The Court determined that the officers’ privacy interests were substantial, since officers expect that they and their families will be safe at home. Also, disclosure of home addresses might subject the officers to harassment. On the other hand, there was little public interest in disclosure. The attorney’s “sole reason for requesting [the] addresses was to utilize a cheaper method of obtaining service of process on the officers,” and this reason “has little or nothing to do with learning or reporting the officers’ activities.” Because the privacy interests were substantial and the public interest non-existent, the requested records were exempt from disclosure.

The Attorney General has frequently employed the balancing test. See, e.g., Ark. Op. Att’y Gen. Nos. 2000-258 (applying Young under factual circumstances similar to those in that case), 98-097 (names and addresses of retired public employees are exempt), 96-088 (employee’s letter of resignation was exempt where it set forth personal reasons for the decision and did not contain any details about the operation of the agency). Compare Ark. Op. Att’y Gen. Nos. 98-131 (because “the identity of public employees is ordinarily a matter of significant public interest,” identification photos of employees will not usually be exempt), 97-331 (disclosure of former mayor’s pension records would not constitute a clearly unwarranted invasion of personal privacy), 95-167 (letter of resignation that reflects salary information is not exempt), 94-119 (privacy interest of the former president of state university was outweighed by the public’s interest in the circumstances of his termination), 89-077 (letter stating employee’s reasons for resigning were not sufficiently personal in nature to trigger exemption).

(vii) As amended in 2001, the FOIA exempts “[h]ome addresses of nonelected state employees contained in employer records,” although the custodian of the records must, on request, “verify an employee’s city or county of residence or address on record.” Ark. Code Ann. § 25-19-105(b)(13). This exemption does not apply to other public employees, such as those who work for cities and school districts. Prior to Stilley v. McBride, supra, the Attorney General took the position that unlisted home addresses of public employees are exempt from disclosure, but that listed addresses are not. E.g., Ark. Op. Att’y Gen. No. 93-403. Post-Stilley opinions recognize that even listed addresses might be exempt, because the information can be used to harass and disclosure does not further the purposes of the FOIA. E.g., Ark. Op. Att’y Gen. Nos. 2001-148, 2000-257, 99-040. However, these opinions also state that the information is not exempt unless the employee in question has a “heightened privacy interest.” That is the case, for instance, with respect to law enforcement officers, see Ark. Op. Att’y Gen. No. 2000-168, and perhaps to public school personnel. See Ark. Op. Att’y Gen. Nos. 2002-169, 2002-158, 2001-148. But a heightened privacy interest requirement seems inconsistent with Stilley. Because the home address of any public employee — whether he or she be a file clerk or a police officer — does not shed any light whatsoever on the workings of government, it is arguably exempt under that decision even if the employee’s privacy interest cannot be described as “heightened.”

(b) Employee Evaluation Records

(i) Subsection (c)(1) does not provide a definition of “employee evaluation or job performance records,” but it does state that “preliminary notes and other materials” associated with the evaluation process are included. Thus, the provision exempts not only the end product, i.e., the evaluation itself, but also other records from which the evaluation was prepared. See Ark. Op. Att’y Gen. Nos. 2001-047 (evaluations of school administrator by faculty and staff), 96-256 (formal evaluation), 96-046 (evaluation appraisal forms), 95-258 (quarterly performance reports), 92-089 (“dock status” memorandum), 90-295 (memoranda and notes). Evaluation scores are also exempt. Ark. Op. Att’y Gen. Nos. 96-205, 94-194. The records must be “created by or at the behest of the employer” for use in the evaluation process. Ark. Op. Att’y Gen. No. 2001-147. Thus, faculty evaluations performed by a student government association and not used in the university’s evaluation process are not exempt. Ark. Op. Att’y Gen. No. 90-086.

(ii) The term “job performance record” has been interpreted as any record relating to an employee’s performance or lack of performance on the job. Ark. Op. Att’y Gen. Nos. 2001-149, 2000-335, 2000-257, 2000-130, 99-360, 99-244, 98-296, 97-190, 94-306. This definition covers a variety of records. E.g., Ark. Op. Att’y Gen. Nos. 2001-147 (documents pertaining to high school football coach’s recruiting of student athlete), 2000-257 (sheriff’s investigation into deputy’s intimate relationship with prisoner), 2000-175 (transcripts of interviews conducted during investigation into employee’s conduct), 2000-166 (grievance records filed in response to supervisor’s comments concerning employee’s job performance), 99-289 (written reprimands, letters of caution, documents upon which a recommendation for dismissal was based, and letters related to promotions and demotions), 98-006 (records of disciplinary actions less severe than suspension or termination), 98-001 (witness statements taken as part of investigation into allegation of sexual harassment), 97-415 (memorandum setting out basis for suspension and records created as part of inquiry into misconduct leading to the suspension), 97-261 (document containing incidents that led to employee’s termination), 97-190 (letter of warning to employee), 97-081 (records of police department internal affairs investigation), 97-063 (notice of termination, employee’s response and request for hearing, employee’s work history), 96-324 (records created as part of inquiry into alleged employee misconduct), 95-326 (records on which suspension of ambulance driver was based), 95-171 (letter of termination that includes reasons for the decision), 95-109 (memorandum explaining employee’s demotion), 94-127 (records of investigation into alleged wrongdoing), 94-110 (records of previous suspension), 93-105 (records of faculty member’s promotion), 93-076 (incident reports), 93-055 (letter recommending termination, letter of reprimand, and other disciplinary records), 92-319 (internal affairs investigation of police officer), 92-247 (notice to terminate teacher and records collected or created as part of investigation leading to that decision), 92-207 (letter of caution to jail employee and other records concerning investigation into an incident at the facility), 92-191 (records reflecting prior suspensions, without pay, of employee who was subsequently terminated), 91-303 (written reprimand), 91-003 (records concerning state agency’s investigation into alleged misconduct by employee), 88-162 (records of inquiry into charges of sexual harassment and resulting reprimand), 88-097 (documents on which recommendation for dismissal of teachers was based).

(iii) A document does not constitute a job performance record merely because it discusses the general duties of an employee or reflects some aspect of how an employee is doing in his or her job. A previously prepared document or an unsolicited letter of complaint about an employee is not transformed into a job performance record by virtue of a subsequent investigation. However, these documents are personnel records covered by Ark. Code Ann. § 25-19-105(b)(12). Ark. Op. Att’y Gen. Nos. 2001-123, 2000-175, 2000-174, 2000-166, 2000-058, 99-339, 99-026, 98-001, 97-342, 97-081, 96-257.

(iv) Evaluations of persons other than employees, such as members of a school board, are not covered. Ark. Op. Att’y Gen. No. 87-361. In that opinion, the Attorney General relied on the common law definition of employee, which would exclude independent contractors. If an agency has legitimately obtained for its use copies of evaluations or job performance records of employees at another agency, the exemption is applicable with respect to those copies. Ark. Op. Att’y Gen. Nos. 2000-279, 2000-257.

(v) Evaluation or job performance records are open for public inspection “only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure.” Ark. Code Ann. § 25-19-105(c)(1). If one or more of these conditions are not met, the records are exempt. Ark. Op. Att’y Gen. Nos. 2000-257, 2000-166, 2000-130, 2000-122, 2000-059, 99-244, 99-148, 99-147, 99-042, 99-041, 98-075, 98-006, 98-001, 97-154. Records that are considered job performance records include letters of recommendation of termination, letters of reprimand, disciplinary records, and documents about investigations into employee misconduct. Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (2012). However, records relating to a use-of-force investigation of a police officer are not considered to be job performance records. Id.

The records are exempt if there has been no suspension or termination, if the employee resigned, or if he or she was reprimanded, demoted, placed on probation, or given a letter of caution. Ark. Op. Att’y Gen. Nos. 2000-175, 98-296, 98-188, 97-176, 97-079, 97-063, 94-306, 92-266, 92-207, 91-324, 91-303, 90-295, 88-094. Similarly, the non-renewal of an employee’s contract at the end of its term does not constitute a termination. Ark. Op. Att’y Gen. No. 2001-125. Moreover, the fact that an employee resigned under pressure does not necessarily amount to a constructive termination. Ark. Op. Att’y Gen. No. 2005-094, 2004-219, 2005-164, 2002-235, 2001-246, 2001-184, 98-188, 97-063. Even if the employee has been terminated, the records are exempt until the effective date of the termination. Ark. Op. Att’y Gen. No. 95-242.

Also, the records are exempt if the employee has administrative remedies available, if a decision to suspend him has been overturned, or if the employee has been reinstated and placed on probation. Ark. Op. Att’y Gen. Nos. 2005-181, 2005-160, 2002-263, 2002-158, 2000-224, 99-361, 97-415, 97-176, 97-063, 95-171, 91-296, 91-180, 88-308. The term “final administrative resolution” means the final decision-making step taken by the employing entity, regardless of the bureaucratic level at which the decision is made. Ark. Op. Att’y Gen. No. 2005-181, 98-006, 94-306, 91-003. If no review is sought, the initial decision is final. Ark. Op. Att’y Gen. Nos. 98-006, 90-292.

Even if the records formed a basis for a final decision to suspend or terminate the employee, they remain exempt unless there is a “compelling public interest” in disclosure. This test is more rigorous than the “clearly unwarranted invasion of personal privacy” standard that applies to other personnel records. Moreover, the mere fact that an employee has been terminated or suspended does not mean that the records should be made public. Ark. Op. Att’y Gen. Nos. 99-361, 99-148, 99-041, 98-122, 97-415, 95-242. Whether there is a compelling public interest in disclosure of these records turns on several factors, including the nature of the infraction that led to suspension or termination, the existence of a public controversy related to the agency and its employees, and the employee’s rank within the agency. Ark. Op. Att’y Gen. Nos. 99-361, 99-148, 99-147, 99-041, 98-122, 98-006. There is a compelling interest in disclosure of records that reflect employee conduct that is illegal, undermines the public trust, or compromises public safety. Ark. Op. Att’y Gen. Nos. 2001-147, 99-361, 98-210, 97-415, 97-400, 97-261, 97-190, 97-081, 97-079, 94-312, 94-119, 92-247, 92-089, 92-075, 91-296, 89-073. “[T]he balance tips in favor of disclosure where the allegations involve sexual misconduct by a manager directed toward a worker.” Ark. Op. Att’y Gen. No. 2002-095, accord Ark. Op. Att’y Gen. Nos. 2005-032, 2004-012. Also, a compelling interest is more likely to be found when a high-level employee is involved than when the records of rank-and-file workers are at issue. Ark. Op. Att’y Gen. Nos. 2004-012 (mayor), 96-258 (vice president of Arkansas Development Finance Authority), 95-242 (second-highest salaried employee in city government), 95-109 (director of Arkansas Arts Council), 94-119 (university president). By contrast, the Attorney General concluded that the test was not met with respect to suspension letters sent to rank-and-file employees while an investigation was in progress. The letters would not accurately inform the public about the employees’ conduct because more information was being collected, and the end result of the investigation was a determination that no further disciplinary action was warranted. Ark. Op. Att’y Gen. No. 2000-242. This is not to say, however, that records of low-level employees will always be exempt. See, e.g., Ark. Op. Att’y Gen. No. 98-075 (records of police officers suspended or terminated for driving accidents are not exempt, since the public “clearly has an interest in the cautious driving of its law enforcement officers in emergency situations”).

(13) Home Addresses of State Employees. Ark. Code Ann. § 25-19-105(b)(13). This provision, added by Act 1653 of 2001 (and Act 1336, which contained identical language), and amended in 2003, exempts “[h]ome addresses of non-elected state employees, non-elected municipal employees, and non-elected county employees contained in employer records.” However, the custodian “shall verify an employee’s city or county of residence or address on record on request.” The State Employees Association pushed strongly for this exemption, which before 2003 applied only to state employees. Arguably, however, the home address of a public employee may be exempt under the FOIA’s exemption for personnel records. See Part II.A.2.m of this outline.

(14) Licensing Examinations. Ark. Code Ann. § 25-19-105(b)(14). Added by Act 1259 of 2001, this exemption applies to “[m]aterials, information, examinations, and answers to examinations utilized by boards and commissions for purposes of testing applicants for licensure by state boards or commissions.” Statutes with similar provisions had previously been enacted with respect to particular licensing agencies. E.g., Ark. Code. Ann. § 17-86-204(d) (licensing examinations of State Board of Massage Therapy).

(15) Military Discharge Records. In 2003, the General Assembly added to the FOIA an exemption for “[m]ilitary service discharge records or DD Form 214, the Certificate of Release or Discharge from Active Duty . . . , filed with the county recorder as provided under § 14-2-102.” This exemption, which appears in Section 25-19-105(b)(15), covers such records “for veterans discharged from service less than seventy (70) years from the current date.” Access is permitted to the veteran and his or her spouse and children. The exemption was prompted by legislative concern about identity theft. Pursuant to a subsequent act of 2005, a veteran may seek a court order to withdraw a discharge record from court files. Ark. Code Ann. § 14-2-102(c)(4).

(16) Public Water System Security Records. In 2003, the General Assembly added an exemption for records “relating to security for any public water system.” This provision was deemed necessary because information “could be obtained for terroristic purposes, including contamination and destruction of public water systems.” The exemption includes in its scope “analyses, investigations, studies, reports, recommendations, requests for proposals, drawings, diagrams, blueprints, and plans,” as well as risk and vulnerability assessments, plans and proposals for preventing and mitigating security risks, records pertaining to emergency response and recovery, security plans and procedures, and “[a]ny other records containing information that, if disclosed, might jeopardize or compromise efforts to secure and protect the public water system.” The exemption by its terms expires on July 1, 2013, but may be renewed by the General Assembly.

(17) Licenses to carry concealed handgun. Records concerning “the issuance, renewal, expiration, suspension, or revocation of a license to carry a concealed handgun” for both current and past licensees are exempt from the FOIA. Ark. Code Ann. § 25-19-105(b)(19). However, the name and zip code for an applicant, licensee, or past licensee “may be released upon request by a citizen of Arkansas.” Ark. Code Ann. § 25-19-105(b)(19)(C).

(18) Settlement Agreements in Tax Cases. Under a 1997 amendment to the FOIA, a settlement agreement reached “at the conclusion of any investigation conducted by a state agency in pursuit of civil penalties . . . shall be deemed a public document” for purposes of the act. Ark. Code Ann. § 25-19-105(h). However, exception is made for settlement agreements “involving any state tax covered by the Arkansas Tax Procedure Act.” Id.

B. Other statutory exclusions

(1) In general. The FOIA also contains a “catch-all” provision that incorporates by reference other statutes that expressly provide for nondisclosure. Ark. Code Ann. § 25-19-105(a)(1) (records are open to inspection “[e]xcept as otherwise specifically provided by . . . laws enacted to provide otherwise.”) In order to fall within this provision, a statute must specifically provide for nondisclosure. Troutt Brothers Inc. v. Emison, 311 Ark. 27, 841 S.W.2d 604 (1992); Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986). However, the statute need not refer to the FOIA by name or statute number in order to qualify as an exemption. Ark. Op. Att’y Gen. No. 97-278. See, e.g., Byrne v. Eagle, 319 Ark. 587, 892 S.W.2d 487 (1995) (loan guarantee applications filed with the Arkansas Development Finance Authority are exempt by virtue of Ark. Code Ann. § 15-5-409, which does not mention the FOIA). The catch-all provision reaches several dozen state statutes and is also broad enough to encompass federal statutes. See Ark. Op. Att’y Gen. No. 94-265 (a record prepared by a federal agency and sent to a state agency is not subject to disclosure if it is exempt under the federal FOIA and the federal agency has asserted the exemption). Moreover, by virtue of the Supremacy Clause, a federal confidentiality requirement supersedes a state disclosure statute. Ark. Op. Att’y Gen. Nos. 96-363, 91-093.

(13) Taxes. Ark. Code Ann. § 26-18-303 (state tax records filed with Department of Finance & Administration, with certain enumerated exceptions); § 26-51-813 (income tax records and returns); § 26-54-105 (corporate franchise tax reports). The following non-tax information is available from franchise tax reports: the name and address of the corporation; the names of its president, vice president, secretary, treasurer, and controller; the total authorized capital stock with par value; the total issued and outstanding capital stock with par value; and the state of incorporation. Ark. Code Ann. §§ 26-18-303(b)(14), 26-54-105(h). In certain circumstances, the identities of delinquent sales taxpayers must be affirmatively published on the Internet. Ark. Code Ann. § 26-18-303(b)(18).

C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

Common Law Exemptions. Only the legislature can exempt records from the FOIA, and the courts are not free to fashion their own exemptions via the common law. Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968). However, public access to judicial records is governed by the common law, and the courts have inherent authority to seal their records under narrow circumstances. See Arkansas Best Corp. v. General Electric Capital Corp., 317 Ark. 238, 878 S.W.2d 708 (1994); Arkansas Dep’t of Human Services v. Hardy, 316 Ark. 119, 871 S.W.2d 352 (1994).

Administrative Regulations. Agencies may not exempt records by regulation unless expressly given that power by statute. Ark. Op. Att’y Gen. No. 92-025. See, e.g., Ark. Code Ann. § 14-51-301(b)(2)(B) & (9)(A) (municipal civil service commissions shall adopt rules protecting examinations from disclosure and copying); § 15-4-1226(b)(4) (Securities Commissioner may “[c]lassify as confidential” certain records obtained in connection with an investigation of a county or regional industrial development company); § 20-76-433(a)(1)(A) (records identifying persons participating in programs administered by the Department of Human Services “may be disclosed only as expressly authorized by law or regulation creating or implementing such programs”); § 23-2-316(b)(1) (Public Service Commission may restrict access to records “in the interest of the public” or, as to proprietary facts or trade secrets, “in the interest of the utility”). See also Ark. Code Ann. § 12-27-113(e)(2)(A) (disclosure of information in Department of Correction inmate records is unlawful “except as authorized by administrative regulation”). Administrative regulations, like statutes exempting records from the FOIA, must specifically provide for nondisclosure and will be construed narrowly by the courts. Orsini v. State, 340 Ark. 665, 13 S.W.3d 167 (2000).

Constitutional Right to Privacy. Although the FOIA provides some protection for privacy interests in the context of personnel records, it lacks a general exemption for records which, if disclosed, would constitute an invasion of personal privacy. However, the Arkansas Supreme Court has recognized a federal constitutional right to privacy which in some cases may prevent access under the FOIA. This right applies to matters that a person wants to keep and has kept private, can be kept private but for the challenged governmental action in disclosing the information, and would be harmful or embarrassing to a reasonable person if disclosed. If this test is satisfied, the question is “whether the governmental interest in disclosure under the [FOIA] outweighs the [individual’s] privacy interest in the nondisclosure of the personal matters.” McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989). SeePulaski County v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718, opinion after remand, 371 Ark. 217, 264 S.W.3d 465 (2007) (recognizing a private individual’s standing to assert a privacy interest in the disclosure of e-mails, requiring trial court to conduct an in camera review of all e-mails a county employee exchanged with the private individual to determine if e-mails were public records under the FOIA, and affirming trial court’s ruling that the private individual had no expectation of privacy in the e-mails). See also Ark. Op. Att’y Gen. Nos. 2008-071, 98-260, 96-363, 96-308, 96-161, 93-356, 92-025, 91-208, 90-324.

3. FERPA

4. Other

F. Segregability requirements

G. Agency obligation to identify basis of redaction or withholding

III. Record categories - open or closed

A. Autopsy and coroners reports

Autopsy reports prepared by the State Medical Examiner are not considered medical records; however, these records are confidential under Ark. Code Ann. § 12-12-312(a) so long as they remain in the possession of the state crime lab. Once they leave the custody of the crime lab, however, the reports are subject to the FOIA unless another exemption, such as the act’s law enforcement exemption, Ark. Code Ann. § 25-19-105(b)(6), is applicable. See Ark. Op. Att’y Gen. Nos. 2001-100, 99-110, 97-294, 87-353. If the autopsy report is prepared by someone other than the State Medical Examiner, the crime lab confidentiality statute would not apply. Ark. Op. Att’y Gen. Nos. 97-294 (autopsy report that was never in possession of crime lab is subject to disclosure), 87-135 (autopsy report of coroner qualified to conduct post mortem tests is available under FOIA unless otherwise exempted).

Records gathered and created during the course of a coroner’s investigation are exempt until the coroner’s final report is issued. However, medical information remains exempt, except as quoted in the final report. Ark. Code Ann. § 14-15-304.

C. Bank records

Certain records of the State Bank Department “shall be confidential and shall not be exhibited or revealed to the public,” including bank examination reports filed with the department, records reflecting information obtained from bank examinations, reports revealing “facts concerning a financial institution, a capital development corporation, or [their] customers,” and personal financial statements submitted to the department. Ark. Code Ann. § 23-46-101(a). Similar provisions apply to records of the State Bank Department concerning trust companies. Ark. Code Ann. § 23-51-187. Banking records of government bodies and other entities subject to the FOIA are generally open. See Ark. Op. Att’y Gen. No. 91-051. Compare Ark. Op. Att’y Gen. No. 2003-064 (records in possession of a bank concerning credit cards issued to state employees for travel expenses probably would not be subject to disclosure under the FOIA).

D. Budgets

Records and communications concerning the budget of a public entity are almost certainly public records and subject to disclosure. See Ark. Op. Att’y Gen. Nos. 2006-096 (sheriff’s budget), 2000-150 (Game and Fish Commission’s budget).

F. Contracts, proposals and bids

By statute, any contract between a state agency and any entity “shall be deemed a public record.” Ark. Code Ann. § 25-18-501. It is not clear whether the legislature intended that such contracts be open to public inspection or that they simply be included within the definition of “public record” that appears in the FOIA. See Ark. Code Ann. § 25-19-103(5)(A). The former seems most likely, since the definition of “public record” is broad enough to cover such contracts. If that interpretation is correct, the contracts would not be subject to any of the statutory exemptions from disclosure.

Contracts with other government bodies — such as cities, counties, and school districts — are not affected by Section 25-18-501 and could be exempt under certain circumstances. If, for example, the contracts contain detailed financial information, they may fall within the FOIA exemption for “files which, if disclosed, would give advantage to competitors or bidders.” Ark. Code Ann. § 25-19-105(b)(9)(A). The same is true with respect to proposals containing financial information, no matter what government entity is involved.

Insofar as bids are concerned, Section 25-19-105(b)(9)(A) is designed to protect the integrity of the bidding process for government contracts. Obviously, a potential bidder should not be able to obtain, prior to the deadline for submission, a copy of bids already filed. But even after the bids have been opened, disclosure of financial information may have an adverse impact if it is so detailed that other companies could use it to estimate the successful bidder’s costs and thus possibly undercut his bids on future projects. Arkansas Dep’t of Finance & Admin. v. Pharmacy Associates Inc., 333 Ark. 451, 970 S.W.2d 217 (1998). Moreover, disclosure of a bidder’s confidential financial information “would have the effect of diminishing the prospect of original and candid bids in the future.” Id. The exemption could also come into play apart from the bidding process itself. See, e.g., Ark. Op. Att’y Gen. No. 92-156 (wage rate information obtained by labor department from companies that had participated in sealed bidding might be exempt).

G. Collective bargaining records

There is no specific exemption in the FOIA for these records, and the act’s personnel exemption cannot be stretched so far as to reach them. Statutes regarding labor and industrial relations are also silent on the issue. However, the records of the State Mediation and Conciliation Service are expressly made confidential, Ark. Code Ann. § 11-2-204, as are records obtained from employers or employees by the Employment Security Division of the Department of Labor. Ark. Code Ann. § 11-10-314.

H. Economic development records

Any files that might “give advantage to competitors or bidders” if disclosed and records maintained by the Arkansas Economic Development Commission that are “related to any business entity’s planning, site location, expansion, operations, or product development and marketing” are exempt from disclosure under the FOIA unless the business entity grants approval for release. Ark. Code Ann. § 25-19-105(b)(9)(A). The exemption does not apply to records of “expenditures or grants made or administered by the commission” that are otherwise disclosable. Id. § 25-19-105(b)(9)(B). The Attorney General has opined that local offices of Economic Development are not included by this exemption, though records maintained by those offices might be covered by the “competitive disadvantage” exemption in § 25-19-105(b)(9). Ark. Op. Att’y Gen. No. 95-108.

I. Election Records

Arkansas election law received an overhaul in 1995 to bring the state into compliance with the National Voter Registration Act of 1993, 42 U.S.C. §§ 1973gg, et seq. Applications and statements of absentee voters are maintained by the county clerk and open to the public. Ark. Code Ann. §§ 7-5-408(b), 7-5-416(b)(1)(F).

Campaign contribution reports, which must be filed by candidates, are open to the public and must be posted on the Secretary of State’s web site. Id. § 7-6-214.

Voter registration lists are open. Ark. Const. amend. 51, § 14; Ark. Code Ann. § 7-5-109. See Blaylock v. Staley, 293 Ark. 26, 732 S.W.2d 152 (1987); Ark. Op. Att’y Gen. No. 94-218. However, information relating to the place where a person registered to vote, submitted a voter registration application, or updated his or her voter registration records is confidential and exempt from the FOIA, as is information relating to a declination to register to vote. Ark. Const. amend. 51, § 8(e). Moreover, the agencies through which persons may register to vote, such as a state revenue office or a public assistance agency, may not disclose voter registration information. Id. § 5(c)(4)(E).

Voter lists reflecting those persons who voted in an election are open to the public. Ark. Code Ann. § 7-5-317(a). See Whorton v. Gaspard, 239 Ark. 715, 393 S.W.2d 773 (1965) (decided under prior law). The results at a given polling place, as well as the overall results as certified by the county board of election commissioners, are also public records. See Ark. Code Ann. §§ 7-5-317, 7-5-527, 7-5-615 & 7-5-701. The ballots themselves are to be kept confidential absent a court order in connection with an election contest or criminal prosecution. Id. § 7-5-702(c).

J. Emergency Medical Services records

Medical records are exempt from disclosure under the FOIA. Ark. Code Ann. § 25-19-105(b)(2). Ambulance and other EMS records that contain “specific information related to an individual’s diagnosis and treatment” are exempt. Ark. Op. Att’y Gen. No. 99-110; 2002-064. Ambulance logs and other records maintained by an agency providing emergency medical services should be examined on a case-by-case basis to determine whether they are exempt as medical records, or whether they can be produced with medical treatment or diagnosis information redacted. See Ark. Op. Att’y Gen. No. 99-110; 2002-064.

K. Gun permits

Records concerning “the issuance, renewal, expiration, suspension, or revocation of a license to carry a concealed handgun” for both current and past licensees are exempt from the FOIA. Ark. Code Ann. § 25-19-105(b)(19). However, the name and zip code for an applicant, licensee, or past licensee “may be released upon request by a citizen of Arkansas.” Ark. Code Ann. § 25-19-105(b)(19)(C).

L. Homeland security and anti-terrorism measures

The FOIA was modified with a public water security records exemption in response to concerns about terrorism. See supra part II.A.2.r. Other exemptions from the FOIA may be effected through other statutes.

M. Hospital reports

The FOIA itself exempts “medical records.” Ark. Code Ann. § 25-19-105(b)(2). Hospital records can clearly fall within this exemption. See Ark. Op. Att’y Gen. No. 91-374. Other statutes may also come into play. See e.g., Ark. Code Ann. § 17-95-104(d) (reports of physician misconduct submitted by hospital to State Medical Board are confidential); § 17-95-107(d)(4) (physician credentialing information obtained by State Medical Board); § 20-9-221(a) (information about health care facilities received by State Department of Health “shall not be disclosed publicly in such manner as to identify individuals or institutions except in a proceeding involving . . . licensing or revocation of a license”), § 20-9-304(a) (reports, memoranda, and other data of hospital staff committees used in the course of medical studies for purpose of reducing morbidity or mortality “shall be strictly confidential and shall be used only for medical research”), § 20-46-104(b) (records of State Hospital are confidential). Records and reports of hospital medical review committees are also exempt from disclosure. Ark. Code Ann. § 16-46-105(a). The previous version of this statute was held insufficiently specific to qualify as an FOIA exemption, Baxter County Newspapers Inc. v. Medical Staff of Baxter Gen. Hospital, 273 Ark. 511, 622 S.W.2d 495 (1981), but the amended statute passes muster. Ark. Op. Att’y Gen. No. 2000-271. Nonprofit corporations that lease county hospitals are not subject to the FOIA unless they receive direct public funding other than Medicare and Medicaid payments. Ark. Op. Att’y Gen. Nos. 2004-233, 97-148, 96-116, 83-163.

N. Personnel records

The FOIA exempts personnel records “to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.” Ark. Code Ann. § 25-19-105(b)(12). However, employee evaluation and job performance records are open to the public “only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure.” Ark. Code Ann. § 25-19-105(c)(1). For a more thorough discussion, see Part II.A.2(13) of this outline.

1. Salary

Information concerning a public employee’s salary is not exempt from disclosure. See, e.g., Ark. Op. Att’y Gen. Nos. 2006-154, 2005-051, 2003-298, 2002-087. Public employees’ salary history, including the dates upon which salary increases were effective are also subject to disclosures. Ark. Op. Att’y Gen. No. 96-205. Documents detailing the reasons for a salary adjustment might be exempt from the FOIA if they could be considered evaluation or job performance records. Ark. Op. Att’y Gen. No. 2002-159.

2. Disciplinary records

Employee evaluation and job performance records are open to the public “only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure.” Ark. Code Ann. § 25-19-105(c)(1). The Attorney General has found disciplinary records to be evaluation and job performance records, so such records are only subject to disclosure if they form the basis for suspension or termination and the disclosure would be warranted by a compelling public interest. See, e.g., Ark. Op. Att’y Gen. Nos. 98-006 (involving records of disciplinary actions less severe than suspension or termination), 93-005 (involving letter recommending termination, letter of reprimand, and other disciplinary records).

3. Applications

If the applicant is successful, his or her job application, resume, and related materials are clearly personnel records. Ark. Op. Att’y Gen. Nos. 2005-004, 97-042, 96-190, 95-244, 95-113, 94-187. The same is true for applicants for promotion or for a different government position. Ark. Op. Att’y Gen. Nos. 2005-004, 96-142, 88-133. Whether the records of unsuccessful job applicants are personnel records remains an open question. In the past, the Attorney General’s Office has taken the position that records of job applicants are not personnel records because potential employees are not personnel. E.g., Ark. Op. Att’y Gen. Nos. 98-102, 90-248. More recent opinions, however, treat the question as open. Ark. Op. Att’y Gen. Nos. 2008-039 2005-004 n.1, 99-002.

5. Expense reports

Reimbursement forms are considered to be personnel records and are subject to disclosure under the FOIA, so long as information that would invade the employee’s privacy, such as a driver’s license number, is redacted. Ark. Op. Att’y Gen. Nos. 2003-135, 2001-120.

6. Evaluations/performance reviews

7. Complaints filed against employees

8. Other

O. Police records

The FOIA exempts “[u]ndisclosed investigations by law enforcement agencies of suspected criminal activity.” Ark. Code Ann. § 25-19-105(b)(6). The exemption applies only to those agencies that investigate suspected criminal activity under the state penal code and have enforcement powers. Legislative Joint Auditing Committee v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987). A record must be investigative in nature to fall within the exemption, Hengel v. City of Pine Bluff, 307 Ark. 457, 821 S.W.2d 761 (1991), and only records of “ongoing criminal investigations” are exempt. Martin v. Musteen, 303 Ark. 656, 799 S.W.2d 540 (1990); McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989). For discussion, see Part II.A.2.f of this outline. An exemption added to the FOIA in 1993 protects the “identities of law enforcement officers currently working undercover with their agency and identified in the Arkansas Minimum Standards Office as undercover officers.” Ark. Code Ann. § 25-19-105(b)(10)(A).

Additionally, personnel records that would otherwise be disclosable are exempt if they are being used in connection with an ongoing criminal investigation. Ark. Op. Att’y Gen. Nos. 97-079, 95-351, 93-300, 93-055. The same is true with respect to attorney work product of the prosecutor. Ark. Op. Att’y Gen. No. 99-110.

1. Accident reports

2. Police blotter

No case or statute specifically references a police blotter in relation to the FOIA. Information that would be contained in such a report—such as arrest records, jail logs, and incident reports—are subject to disclosure under the FOIA when they are not clearly investigative. Hengel v. City of Pine Bluff, 307 Ark. 457, 821 S.W.2d 761 (1991).

3. 911 tapes

Recordings made of 911 calls are subject to disclosure under the FOIA. Ark. Op. Att’y Gen. No. 94-100. Subscriber information, including names, telephone numbers, and addresses, of 911 callers that is provided by service providers to the 911 system is confidential and is not subject to the FOIA. Ark. Code Ann. § 12-10-317(a)(2).

4. Investigatory records

There is an exemption for “undisclosed investigations by law enforcement agencies of suspected criminal activity.” Ark. Code Ann. § 25-19-105(b)(6). A record must be investigative in nature to fall within the exemption. Arrest reports, jail logs, incident reports, and shift sheets do not qualify, Hengel v. City of Pine Bluff, 307 Ark. 457, 821 S.W.2d 761 (1991), nor do arrest disposition reports maintained by jails. Ark. Op. Att’y Gen. No. 92-207. Similarly, accident reports, traffic citations, dispatch logs, and records reflecting results of blood alcohol tests in DWI cases are not exempt. Ark. Op. Att’y Gen. Nos. 96-070, 87-319, 87-115, 86-020. Prison-transport manifests also are not exempt under this exemption, because they are records “kept in the regular course of business.” Holladay v. Glass, 2017 Ark. App. 595, 534 S.W.3d 173 (2017). By contrast, the Hengel case indicates that information such as an officer’s speculation about a suspect’s guilt, his or her views as to the credibility of witnesses, and statements by informants fall within the exemption. See also Ark. Op. Att’y Gen. No. 99-110 (exemption applies to opinions and impressions of investigating officer). The Supreme Court has suggested, without deciding, that records generated as a result of intelligence or surveillance activity unrelated to a specific crime fall within the exemption. Johninson v. Stodola, 316 Ark. 423, 872 S.W.2d 374 (1994) (police records of gang membership).

Only records of “ongoing criminal investigations” are exempt. Martin v. Musteen, 303 Ark. 656, 799 S.W.2d 540 (1990) (criminal investigation was ongoing for FOIA purposes even though charges had been filed against one of several suspects).

If an investigation has been concluded, the exemption no longer applies and the records are open. McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989). That the records may contain names of confidential informants or other sensitive information is irrelevant. Ark. Op. Att’y Gen. No. 90-305. Records concerning investigation of a juvenile are open after the investigation is completed, provided that the juvenile has not been arrested. Ark. Op. Att’y Gen. No. 98-151.

An investigation is not ongoing when a police department has closed the case by “administrative action,” McCambridge v. City of Little Rock, supra, or when a prosecuting attorney decides not to pursue criminal charges. Ark. Op. Att’y Gen. No. 99-110. Otherwise, it is not clear when an investigation is considered at an end for FOIA purposes. Compare Ark. Op. Att’y Gen. Nos. 88-055 (investigation is closed when law enforcement agency turns case over to the prosecutor), 89-101 (investigation is open until trial is completed or statute of limitations has run), 89-311 (investigation is closed when case “proceeds to trial”), 90-305 (investigation ends when charges are filed). The Attorney General has opined that “there is no bright line rule,” and the point of closure may be marked by any of the defendant’s arrest, the completion of trial, the conclusion of appeal, or another event. Ark. Op. Att’y Gen. No. 2002-303. To the extent that this issue turns on the facts of a given case, it is a question for the trial court. Martin v. Musteen, supra. If records are requested that the police department contends are exempt because the investigation is closed, the Court should conduct an in camera review of the investigation file to determine whether the police department is taking any action in furtherance of the investigation. Dep’t of Ark. State Police v. Keech Law Firm, P.A., 2017 Ark. 143, 516 S.W.3d 265 (2017). When activity in the file is “sparse,” the Court can determine that the investigation is closed for the purposes of the FOIA exemption. Id.

The exemption applies to copies of records in police files when the originals have been forwarded to another law enforcement agency that is continuing the investigation. Ark. Op. Att’y Gen. Nos. 98-127, 92-237.

5. Arrest records

Arrest records generally must be disclosed. Hengel v. City of Pine Bluff, 307 Ark. 457, 821 S.W.2d 761 (1991). An order of expungement or an order to seal a record does exempt an arrest report from the FOIA. See Ark. Op. Att’y Gen. No. 2004-049; Ark. Code Ann. § 16-90-903. Arrest records of juveniles are exempt from the FOIA unless the disclosure is authorized by a written order of the court or the arrest results in the juvenile’s being formally charged with a felony. Ark. Code Ann. § 9-27-309(j).

6. Compilations of criminal histories

7. Victims

The address and telephone number for victims and their immediate families are not subject to disclosure. Ark. Code Ann. § 16-90-1110. The identities of victims of sex crimes are exempt from the FOIA. Ark. Code Ann. § 12-12-913(e)(2).

8. Confessions

There is no statutory or case law that directly addresses confessions. However, because the only records that qualify for the open-investigation exception are documents that are investigative in nature, Hengel v. City of Pine Bluff, 307 Ark. 457, 821 S.W.2d 761 (1991), a confession contained in a document that is subject to disclosure, such as an arrest report, probably would not be exempt from the FOIA.

9. Confidential informants

Statements of confidential informants contained in records for closed investigations are subject to the FOIA. McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989). The Arkansas Supreme Court has also indicated that, absent legislative action, the identities of confidential informants from closed investigations should not be protected. Martin v. Musteen, 303 Ark. 656, 799 S.W.2d 540 (1990). The Attorney General has opined that any information relating to a confidential informant must be disclosed if the investigation is closed. Ark. Op. Att’y Gen. No. 2006-158.

10. Police techniques

Unless the technique or manual fits into the “open investigation” exception, the Attorney General has opined that it is subject to disclosure. Ark. Op. Att’y Gen. No. 85-134. Furthermore, any training manuals located in a police officer’s personnel file is subject to the FOIA. Ark. Op. Att’y Gen. No. 2008-046.
Sections of the Department of Correction’s procedures dealing with emergency situations are exempt from the FOIA. Ark. Code Ann. § 12-27-137(a).

11. Mugshots

There is no statutory or case law on this issue. Because there is no specific statutory provision prohibiting the release of mug shots, they would likely be subject to disclosure because the FOIA is to be interpreted liberally, and exemptions must be specific. Hengel v. City of Pine Bluff, 307 Ark. 457, 821 S.W.2d 761 (1991). Inmate records created by the Department of Corrections are exempt from the FOIA, so a mug shot taken for such records would be exempt. Ark. Code Ann. § 12-27-113.

12. Sex offender records

Information collected by the Sex Offender Assessment Committee is generally exempt from the FOIA. Ark. Code Ann. § 12-12-913(e)(2). However, certain information shall be published on the website for the State of Arkansas for sex offenders who are classified as Level 3 or 4 offenders or who were at least eighteen years old at the time of their crime and the victim was fourteen years old or younger. The following information that must be made public:

(i) The sex offender’s complete name, as well as any alias;

(ii) The sex offender’s date of birth;

(iii) Any sex offense to which the sex offender has pleaded guilty or nolo contendere or of which the sex offender has been found guilty by a court of competent jurisdiction;

(iv) The street name and block number, county, city, and zip code where the sex offender resides;

(v) The sex offender’s race and gender;

(vi) The date of the last address verification of the sex offender provided to the Arkansas Crime Information Center;

(vii) The most recent photograph of the sex offender that has been submitted to the center; and

13. Emergency medical services records

14. Police video (e.g, body camera footage, dashcam videos)

15. Biometric data (e.g., fingerprints)

16. Arrest/search warrants and supporting affidavits

17. Physical evidence

P. Prison, parole and probation reports

Inmate records created by the Department of Corrections are exempt from the FOIA. Ark. Code Ann. § 12-27-113(e)(2).
The parole board must make public its recommendation for parole. Ark. Code Ann. § 16-93-206. However, there is no statutory or case law concerning whether subsequent parole reports are subject to the FOIA.
Probation files that are not part of expunged records are open under the FOIA. Ark. Op. Att’y Gen. No. 99-350.

R. Public utility records

Records relating to the security of a public water system are closed. Ark. Code Ann. § 25-19-105(b)(18).

Records relating to individual customers’ usage from a public utility are open, and personal information contained in those records probably cannot be redacted. Ark. Op. Att’y Gen. No. 2009-060. This includes a municipal-utility ratepayer’s home address, which the Arkansas Supreme Court has held cannot be redacted from public records if requested. Hopkins v. City of Brinkley, 2014 Ark. 139, 432 S.W.3d 609 (2014).

2. Negotiations

There is no statutory or case law involving written records of real estate negotiations. However, there is no provision allowing for closed meetings of public officials for the purpose of negotiating the purchase of real estate. When the General Assembly was debating the FOIA in 1967, an amendment was offered in the House to permit executive sessions for negotiations involving the purchase of real estate. The House initially agreed to the amendment but subsequently changed its mind and expunged the vote. Ark. Legis. Digest, 66th General Assembly, at 87, 91 (1967). During the 2001 legislative session, a bill that would permit closed meetings for discussing “the purchase, sale or lease of real property” died in committee. See S.B. 589, 83d General Assembly (May 14, 2001); see also Harris v. City of Ft. Smith, 359 Ark. 355, 197 S.W.3d 461 (2004).

3. Transactions

4. Deeds, liens, foreclosures, title history

Deeds to state property are filed in the office of the Commissioner of State Lands and are considered public records. Ark. Code Ann. § 22-5-411. Liens on real property are public records once they are filed. Ark. Code Ann. § 18-40-102.
Although a county clerk does not have to perform a lien search under the FOIA, such records must be made available for citizens to inspect. Ark. Op. Att’y Gen. No. 90-261.

T. School and university records

1. Athletic records

The FOIA exempts “education records as defined in the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, unless their disclosure is consistent with the provisions of [that act].” Ark. Code Ann. § 25-19-105(b)(2). The FERPA includes a student’s participation in sports to be “directory information” that may be published. 20 U.S.C. § 1232g(a)(5).
“Stat sheets” that detail the scoring at athletic events are subject to disclosure if high-school students’ names and identifying information are redacted. Ark. Op. Att’y Gen. No. 2001-150.

3. Student records

Most student records are exempt from the FOIA. The statute exempts “education records as defined in the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, unless their disclosure is consistent with the provisions of [that act].” Ark. Code Ann. § 25-19-105(b)(2). Under the FERPA, education records include “records, files, documents, and materials which contain information directly related to a student.” 20 U.S.C. § 1232g(a)(4)(A). Grade transcripts in possession of the educational entity are student records and are exempt from disclosure. Ark. Op. Att’y Gen. No. 2003-231.

The exceptions to that rule include information kept by a campus law enforcement unit for the purpose of law enforcement; records maintained by a physician, psychiatrist, psychologist, or other recognized professional in the treatment of the student; or directory information, which includes the student’s name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended by the student. 20 U.S.C. § 1232g(a)(4)(A)-1232g(a)(5).

FERPA does not prohibit a university from disclosing information concerning certain violent crimes and nonforcible sex offenses if the university determines that “the student committed a violation of the institution’s rules or policies with respect to [the] offense.” The perpetrator’s name, the offense, and the sanction imposed can all be disclosed. 20 U.S.C. § 1232g(b)(6)(B)-(C). This information is also not exempt from disclosure under the FOIA. Ark. Op. Att’y Gen. No. 2001-046.

FERPA is limited to records that identify a student personally, and such records can be disclosed if the student’s personally identifying information is redacted. See Ark. Op. Att’y Gen. No. 2001-154.

Because the FERPA applies only to education records kept by schools, colleges, and a few other agencies, student records—such as transcripts—that are kept as part of an employee’s personnel file are subject to disclosure if there would be no clearly unwarranted invasion of personal privacy. Ark. Code Ann. § 25-19-105(b)(12).

4. School foundation/fundraising/donor records

5. Research material or publications

6. Other

U. State guard records

V. Tax records

W. Vital Statistics

1. Birth certificates

Birth certificates are exempt from the FOIA. They can only be disclosed for research purposes, and the disclosure of information that would identify a person or an institution can only be obtained upon a written request and with an agreement providing for the confidentiality of the information. Ark. Code Ann. § 20-18-304(a).

2. Marriage and divorce

Marriage and divorce records are exempt from the FOIA. They can only be disclosed for research purposes, and the disclosure of information that would identify a person or an institution can only be obtained upon a written request and with an agreement providing for the confidentiality of the information. Ark. Code Ann. § 20-18-304(a).

3. Death certificates

Death certificates are exempt from the FOIA. They can only be disclosed for research purposes, and the disclosure of information that would identify a person or an institution can only be obtained upon a written request and with an agreement providing for the confidentiality of the information. Ark. Code Ann. § 20-18-304(a).

4. Infectious disease and health epidemics

The Arkansas Department of Health and Human Services maintains reports of positive HIV and AIDS tests. Those records are exempt from the FOIA. Ark. Code Ann. § 20-15-904. Records of healthcare-acquired infections collected by the Arkansas Department of Health and Human Services are exempt from the FOIA. Ark. Code Ann. § 20-9-1206. The records maintained by the Cancer Registry of Arkansas are also exempt from disclosure. Ark. Code Ann. § 20-15-203.

IV. Procedure for obtaining records

A. How to start

1. Who receives a request?

The request should be directed to the “custodian” of the records. Ark. Code Ann. § 25-19-105(a)(2)(A). The term “custodian” is defined as “the person having administrative control of that record,” “except as otherwise provided by law.” Id. § 25-19-103(1)(A) (added by Act 999 of 2015). “Custodian” does not include “a person who holds public records solely for the purposes of storage, safekeeping, or data processing for others.” Id. § 25-19-103(1)(B) (added by Act 1653 of 2001). Under this definition, an agency’s chief administrator should be considered the custodian, since he or she has ultimate control over its records, unless someone else is otherwise provided by law as the custodian. Some agencies have adopted regulations implementing the FOIA, though they are not required to do so. Any such rules should be consulted for guidance as to where particular records are maintained and to whom a FOIA request should be made. In some cases, that information is available online. E.g., Department of Environmental Quality, http://www.adeq.state.ar.us/poa/pi/.

If the person to whom the request is directed is not the custodian of the records, he or she “shall so notify the requester and identify the custodian, if known to or readily ascertainable by” the person who receives the request. Ark. Code Ann. § 25-19-105(a)(3) (added by Act 1653 of 2001).

2. Does the law cover oral requests?

As amended in 2001, the FOIA provides that a request may be made “in person, by telephone, by mail, by facsimile transmission, by electronic mail, or by other electronic means provided by the custodian.” Ark. Code Ann. § 25-19-105(a)(2)(B). If the request is made orally, in person, or by telephone, the requester is not required to provide a written version. Ark. Op. Att’y Gen. No. 2006-104. Agency regulations requiring written requests are contrary to the FOIA. Ark. Op. Att’y Gen. Nos. 2001-052, 96-354. Even if the request is made in person, however, a written request is advisable because it provides a record of the request in the event that litigation is necessary.

Requests by telephone or in person must be made during “the regular business hours of the custodian.” Ark. Code Ann. § 25-19-105(a)(1). Despite the statutory language, a Supreme Court opinion suggests that the term “regular business hours” refers to the hours that the agency usually operates, not to the office hours of the custodian. See Hengel v. City of Pine Bluff, 307 Ark. 457, 821 S.W.2d 761 (1991). The Hengel decision, however, should be limited to its facts. There, the request involved records kept at a city jail, which was open around the clock. A different result should follow if the records at issue are maintained by the police (or any other agency that keeps long hours) in an office that is open only from 8:00 a.m. to 5:00 p.m. As the Attorney General has observed, “the text of [Section 25-19-105(a)(1)] reflects only a legislative intention to make public records available at times when public employees are or should be present to locate and identify them.” Ark. Op. Att’y Gen. No. 2001-086.

If an oral request is denied, there is no requirement that the requester memorialize the refusal or the requester’s subsequent steps, but such documentary evidence is advisable because it provides a record of the refusal and/or steps taken in the event that litigation is necessary.

3. Required contents of a written request

4. Can the requester choose a format for receiving records?

5. Availability of expedited processing

B. How long to wait

1. Statutory, regulatory or court-set time limits for agency response

Access to records apparently must be granted immediately unless the records are in active use or storage, in which case they must be made available within three working days of the request. Ark. Code Ann. § 25-19-105(e). While the FOIA contemplates immediate access, the custodian has a “reasonable time” to respond to the request if the records are voluminous or if they must be reviewed to decide whether an exemption applies. Reasonableness is determined on a case-by-case basis, and an agency policy that all responses will be made in three working days is contrary to the act. Ark. Op. Att’y Gen. Nos. 2000-59, 99-157, 98-223, 96-354, 94-225.

(1) As a practical matter, records at most agencies (except those set up to handle “over-the-counter” requests, such as the circuit clerk’s office) will be in either active use or storage, thus triggering the provision allowing the agency three working days to make them available. Records are in active use if, “at the time of the FOIA request[, they] are being utilized by agency employees in the performance of their official functions or duties.” Records are in storage if, at the time of the request, they are “located in a place which makes immediate access impossible or impractical.” Ark. Op. Att’y Gen. No. 94-225. The location of the unit in which the records are stored is of no significance. Ark. Op. Att’y Gen. No. 98-223.

(2) Requests for personnel records and employee evaluation records must be acted upon with 24 hours of the custodian’s receipt of the request. Ark. Code Ann. § 25-19-105(c)(3)(A). During that same period, the custodian must notify the person about whom the records are maintained that a request has been made. Id. The custodian, requester, or subject of the records may “immediately” seek an Attorney General’s opinion as to whether the records are exempt from disclosure. Ark. Code Ann. § 25-19-105(c)(3)(B). The statute requires the Attorney General to issue an opinion within three working days, and the records should not be disclosed until an opinion is handed down. Id.; Ark. Op. Att’y Gen. No. 93-300. If no request for an Attorney General’s opinion is made, the custodian should wait an additional 48 hours (72 hours from receipt of the FOIA request) before releasing the records. Ark. Op. Att’y Gen. Nos. 99-168, 97-008.

(3) The deadline of three working days will simply be unrealistic in some cases. See Ark. Op. Att’y Gen. No. 2000-059 (if a search will take some time because the requested records are voluminous or it is necessary for the custodian to obtain legal advice as to whether some records may be exempt from disclosure, the custodian should be afforded a “reasonable amount of time” to comply with the request, even if more than three working days are necessary). If the request is likely to be controversial or covers a large number of records, the requester should consider allowing the agency additional time or negotiating for the immediate release of some records and access to others on a delayed basis.

2. Informal telephone inquiry as to status

Negotiation is advisable prior to filing a lawsuit, especially in light of the very short response period. A telephone inquiry after the deadline has passed as to the status of the request would not be inappropriate. The FOIA itself is silent on the matter. Whether such an inquiry is advisable will turn largely on the agency involved and the requester’s experience with the agency.

3. Is delay recognized as a denial for appeal purposes?

The agency’s failure to respond promptly is presumably a denial of “the rights granted to him or her” by the FOIA. Ark. Code Ann. § 25-19-107(a). If the deadline is not met, the requester can seek immediate judicial relief.

4. Any other recourse to encourage a response

In some situations, involving the Attorney General’s Office might resolve the matter. With respect to personnel and evaluation records, the FOIA allows (but does not require) the person making the request, the custodian of the records, or the person about whom the records are maintained to seek an opinion from the Attorney General. Ark. Code Ann. § 25-19-105(c)(3)(B) & (C). Otherwise, only the officials specified by statute (i.e., legislators, prosecuting attorneys, and heads of state agencies) may request formal opinions. Ark. Code Ann. § 25-16-706. Nevertheless, legislators often request opinions on behalf of their constituents. In addition, the Attorney General’s Office will answer questions about the FOIA. Calls should be directed to the opinions section at (501) 682-5086 or toll-free at 1-800-482-8982. In some cases, the Attorney General might be persuaded to request the same records and, upon denial of that request, bring an action under the FOIA to force disclosure. See Bryant v. Weiss, 335 Ark. 534, 983 S.W.2d 902 (1998).

C. Administrative appeal

Nothing in the FOIA addresses an administrative appeal within the agency from a denial of the request. Because there are no specified administrative procedures to exhaust, the initial denial should be treated as final for purposes of judicial review. See Ark. Code Ann. § 25-19-107(a) (citizen denied rights under FOIA “may appeal immediately from the denial”). Exhaustion of administrative remedies is not necessary in FOIA cases unless declaratory relief is sought. Rehab Hospital Servs. Corp. v. Delta-Hills Health Sys. Agency Inc., 285 Ark. 397, 687 S.W.2d 840 (1985).

1. Time limit to file an appeal

2. To whom is an appeal directed?

The appeal can be taken to the Pulaski County Circuit Court. The appeal can be taken in the circuit court located in the plaintiff’s residence if the defendant is the State of Arkansas, a state agency or department, or a state institution. If the defendant is a private organization supported by or expending public funds or an agency of a county, municipality, township, or school district, then the appeal may be taken in the circuit court in the jurisdiction where the defendant is situated. Ark. Code Ann. § 25-19-107(a).

When personnel or evaluation records are at issue, the FOIA allows (but does not require) the person making the request, the custodian of the records, or the person about whom the records are maintained to seek an opinion from the Attorney General. Ark. Code Ann. § 25-19-105(c)(3)(B) & (C).

6. Subsequent remedies

D. Additional dispute resolution procedures

1. Attorney General

2. Ombudsperson

3. Other

E. Court action

1. Who may sue?

“Any citizen denied the rights granted him by [the FOIA] may appeal immediately from the denial.” Ark. Code Ann. § 25-19-107(a). The Attorney General, acting in his official capacity, is a “citizen” for purposes of this provision. Bryant v. Weiss, 335 Ark. 534, 983 S.W.2d 902 (1998). Consequently, the Attorney General can request the same records that have been sought unsuccessfully by someone else and, upon denial of that request, bring an action under the FOIA to force disclosure.

2. Priority

The FOIA requires the court to “fix and assess a day the petition is to be heard” within seven days of its filing. Ark. Code Ann. § 25-19-107(b). This provision is probably unenforceable in light of a court’s inherent authority to control its docket. See McConnell v. State, 227 Ark. 988, 302 S.W.2d 805 (1957). In Orsini v. State, 340 Ark. 665, 13 S.W.3d 167 (2000), the Supreme Court left open the question whether Section 25-19-107(b) “requires that a hearing be set within seven days of the FOIA request or actually conducted within that time frame . . . because the circuit court did neither.” Nevertheless, the Court emphasized that “this section of the FOIA sets a policy in favor of expeditious hearings on all FOIA requests.”

b. Fees for records

As amended in 2001, the FOIA expressly provides that unless another statute authorizes a higher fee, “any fee for copies shall not exceed the actual costs of reproduction, including the costs of the medium of reproduction, supplies, equipment, and maintenance, but not including existing agency personnel time associated with searching for, retrieving, reviewing, or copying the records.” Ark. Code Ann. § 25-19-105(d)(3)(A)(i). Also, the custodian must provide an itemized breakdown of all charges. Id. § 25-19-105(d)(3)(B). Copying fees imposed by the agency could be challenged in court as exceeding the “actual costs of reproduction.” Id. § 25-19-105(d)(3)(A)(i).

c. Delays

A court could be called upon to decide whether delay on the part of an agency is tantamount to a denial of access, but this issue has not arisen in reported cases. If non-exempt public records are in “active use or storage,” the custodian has three working days to make them available for inspection and copying. Ark. Code Ann. § 25-19-105(e). A FOIA suit filed before the expiration of this period is premature. Hamilton v. Simpson, 67 Ark. App. 173, 176, 993 S.W.2d 501, 503 (1999).

5. Pleading format

The normal rules of pleading that govern civil cases presumably apply in FOIA suits. See Rule 8, Ark. R. Civ. P. Arkansas is a “fact pleading” jurisdiction with requirements more stringent than those applicable in federal court. See Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981) (explaining Ark. R. Civ. P. 8(a)). More informal pleading may be permissible in FOIA cases, however, because the act refers to a “petition” that is to be filed in an “appeal” to the appropriate circuit court. Ark. Code Ann. § 25-19-107(a) & (b). There being no reported cases on this point, a FOIA plaintiff should follow the general pleading rules. Cf. Dauer v. Ponder, 274 Ark. 166, 623 S.W.2d 3 (1981).

6. Time limit for filing suit

7. What court?

A FOIA suit must be brought in Pulaski County Circuit court or the circuit court of the judicial district in which the plaintiff resides if a state agency is involved. If any other government body or a private entity is involved, venue is proper only in the circuit court of the judicial district in which the entity is located. Ark. Code Ann. § 25-19-107(a); ACORN v. Jackson, 263 Ark. 67, 562 S.W.2d 589 (1978).

8. Burden of proof

9. Judicial remedies available

10. Litigation expenses

a. Attorney fees

A fee award to a successful plaintiff is not necessary in every case and is generally inappropriate unless the plaintiff “substantially prevailed” on the FOIA claim and the defendant’s actions were “substantially justified.” City of Little Rock v. Carpenter, 374 Ark. 551, 288 S.W.3d 647 (2008). See alsoHarris v. City of Ft. Smith, 366 Ark. 277, 234 S.W.3d 875 (2006). For many years, a finding that the defendant had acted arbitrarily or in bad faith was required, Depoyster v. Cole, 298 Ark. 203, 766 S.W.2d 606 (1989), but that standard was overruled in the Harris case, 366 Ark. 277, 234 S.W.3d 875. Additionally, an award of fees and costs is inappropriate when the plaintiff files suit without giving the custodian sufficient time to locate the records. Hamilton v. Simpson, 67 Ark. App. 173, 993 S.W.2d 501 (1999). A defendant may recover attorneys’ fees and costs only if it substantially prevails and the action was initiated “primarily for frivolous or dilatory purposes.” Ark. Code Ann. § 25-19-107(d)(2).

Attorneys’ fees and costs may not be assessed against the State or any of its agencies or departments, Ark. Code Ann. § 25-19-107(e)(1), though by statute, such an award may be made against the State in FOIA cases involving the Hazardous Waste Management Act, Ark. Code Ann. § 8-7-204(j). The Court of Appeals has held in George v. Department of Human Services, 88 Ark. App. 135, 195 S.W.3d 399 (2004), that state officers and employees are within the statute’s exemption from fees for state departments and agencies. A suit against a state officer or employee in his or her official capacity is equivalent to a suit against the state agency or department for which the named defendant works. Id. at 139-40, 195 S.W.3d at 402. The court reasoned that an officer or employer may only be sued in an official capacity because he or she has administrative control over public records only in an official capacity. Id. at 140, 195 S.W.3d at 402. This reasoning might be mistaken, as it flies in the face of the plain language of the FOIA. Cf. Hafer v. Melo, 502 U.S. 21, 25 (1991) (explaining that an individual-capacity action under 42 U.S.C. § 1983 “seek[s] to impose individual liability upon a government officer for actions taken under color of state law”). The criminal penalties of the FOIA pertain to state officers and employees; had the legislature intended to immunize them against civil remedies, it could have done so. See Ark. Code Ann. § 25-19-104.

11. Fines

12. Other penalties

13. Settlement, pros and cons

F. Appealing initial court decisions

1. Appeal routes

Under the Court’s present rules, the appeal may be heard in the first instance by the Court of Appeals. Unless a case poses a question of state constitutional law or falls into certain categories not relevant here, appellate jurisdiction lies initially in the Court of Appeals. Ark. Sup. Ct. R. 1-2. Nonetheless, any appeal is subject to reassignment by the Supreme Court, which will consider such factors as whether the case suggests a need to clarify the law or presents an issue of first impression, a question of statutory interpretation, an issue of substantial public interest, or an issue on which there is a perceived inconsistency among prior decisions. Ark. Sup. Ct. R. 1-2(b).

2. Time limits for filing appeals

Notice of appeal must be filed with the clerk of the trial court within 30 days of the entry of judgment, unless a post-trial motion is filed. Ark. R. App. P.–Civ. 4. In that event, the notice of appeal must be filed within 30 days of the trial court’s disposition of the motion or within 30 days of the date on which the motion is deemed denied by operation of law. Ark. R. App. P.–Civ. 3 & 4. The record on appeal must be filed with the clerk of the Supreme Court within 90 days of the filing of the notice of appeal, though an extension of time may be obtained from the trial court. Ark. R. App. P.–Civ. 5.

G. Addressing government suits against disclosure

Open Meetings

I. Statute - basic application

A. Who may attend?

Because the FOIA provides that meetings “shall be public,” Ark. Code Ann. § 25-19-106(a), it appears that anyone may attend, including representatives of the news media. However, only an Arkansas citizen may bring an action under the FOIA claiming a violation of the act. Ark. Code Ann. § 25-19-107(a). See Ark. Op. Att’y Gen. No. 97-016.

b. Are certain executive functions covered?

c. Are only certain agencies subject to the act?

The act is not applicable to meetings of agency staff or employees. Nat’l Park Med. Ctr. Inc. v. Ark. Dep’t of Human Servs., 322 Ark. 595, 911 S.W.2d 250 (1995). See also Ark. Op. Att’y Gen. Nos. 2000-111 (meeting between school board member and superintendent of schools), 79-169 (school district administrators), 77-035 (university administrators). Similarly, the FOIA does not reach meetings of various officials who do not constitute a governing body. See, e.g., Ark. Op. Att’y Gen. Nos. 97-202 (justices of peace, state representatives, county officials), 96-074 (meeting of representatives of three different agencies), 87-288 (meeting of county judge, sheriff, county clerk, circuit clerk, and county assessor), 84-207 (school administrators and state auditors).

2. Legislative bodies

The Attorney General has indicated that the General Assembly and its committees are subject to the FOIA. Ark. Op. Att’y Gen. No. 84-091. However, the Constitution expressly provides that “sessions of each house and of committees of the whole shall be open, unless when the business is such as ought to be kept secret.” Ark. Const. art. V, § 13. This provision is a broad exception to the FOIA, but applies only to both houses and to “committees of the whole” and thus apparently does not reach other legislative committees. See Ark. Op. Att’y Gen. No. 84-91. All meetings of the Legislative Council, a committee created by statute, “shall be open to the public, except in those instances in which the Legislative Council feels that it is necessary to go into executive session.” Ark. Code Ann. § 10-3-305(a).

Other legislative bodies, such as a city council and county quorum court, are clearly subject to the open meeting requirement. E.g., Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968) (city council).

3. Courts

(1) The Attorney General has opined that the Supreme Court, a multi-member body with rulemaking and other supervisory powers over the judicial branch, is subject to the FOIA. Ark. Op. Att’y Gen. No. 84-091. However, application of the act to the Court would run afoul of the separation of powers doctrine. See Ark. Newspapers Inc. v. Patterson, 281 Ark. 213, 662 S.W.2d 826 (1984). Thus, the Court may exempt itself from the FOIA by adopting rules that provide for closed meetings. Ark. Op. Att’y Gen. No. 90-217.

(a) Committees established by the Supreme Court, such as the Court’s committee on professional conduct, must apparently follow the FOIA’s open meeting provisions, at least insofar as they exercise delegated authority. Ark. Op. Att’y Gen. No. 84-91. However, the Court may by rule provide for closed sessions. Ark. Op. Att’y Gen. No. 90-217.

(b) Other state courts are not subject to the FOIA’s open meeting requirement. The Court of Appeals lacks judicial rulemaking authority, and single-judge trial courts are not “bodies” that can hold “meetings.” Under another statute, however, “[t]he sittings of every court shall be public, and every person may freely attend the sittings of every court.” Ark. Code Ann. § 16-10-105. See, e.g., Taylor v. State, 284 Ark. 103, 679 S.W.2d 797 (1984); Shiras v. Britt, 267 Ark. 97, 589 S.W.2d 18 (1979). There is also a qualified right of access to judicial proceedings under the First Amendment. E.g., Press-Enterprise Co. v. Superior Court of California for Riverside Cnty, 478 U.S. 1 (1986).

(2) Grand juries are expressly excluded from the list of entities subject to the open meeting requirement. Ark. Code Ann. §§ 25-19-103(6), 25-19-106(a).

(2) The mere receipt of public funds is not sufficient to bring a private entity within the FOIA; rather, the question is whether the private group carries on “public business” or is otherwise intertwined with the activities of government. City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990); Ark. Op. Att’y Gen. Nos. 2001-069, 2000-039, 99-090, 98-139, 97-148, 96-123, 96-116, 96-013, 94-023, 92-205. Compare Kristen Inv. Props., LLC v. Faulkner Cnty. Waterworks & Sewer Pub. Facilities Bd., 72 Ark. App. 37, 32 S.W.3d 60 (2000) (FOIA applies to volunteer fire department that received fees from public fire protection district, as well as governmental loans, and “performed a service routinely provided by government”), with Sutton v. Ballet Ark. Inc., CIV 00-3066 (Pulaski County Cir. Ct. 2000) (ballet company that received some financial support from the state and county was not subject to the FOIA because its activities “do not appear to be intertwined to a government function so much that its activities are tantamount to government action”).

(a) A private entity that receives public funds for services rendered to a government agency is subject to FOIA when the services could have been performed by public employees. Swaney v. Tilford, 320 Ark. 652, 898 S.W.2d 462 (1995) (accounting firm); City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990)(law firm); Kristen Inv. Props. v. Faulkner Cnty. Waterworks & Sewer Pub. Facilities Bd., 72 Ark. App. 37, 32 S.W.3d 60 (2000)(volunteer fire department). See, e.g., Ark. Op. Att’y Gen. Nos. 2000-260 (nonprofit economic development corporation that receives sales tax revenue), 2000-039 (nonprofit corporation that provides services for developmentally disabled individuals), 99-350 (probation records maintained by private contractor working for a municipal judge), 97-148 (nonprofit corporation that leases hospital facility from county), 96-185 (private company that operates state prison), 96-116 (nonprofit corporation that leases hospital facility from county), 95-273 (area agency on aging, a nonprofit corporation, operates under close supervision and direction from the government and performs functions that would otherwise be performed by the government), 95-121 (chamber of commerce that provides services to city advertising and promotion commission), 94-023 (chamber of commerce engaged in economic development on city’s behalf), 92-220 (nonprofit corporation that operated public access cable channel under contract with city). But see Ark. Op. Att’y Gen. Nos. 96-185 (construction company that builds state prison is not subject to FOIA), 95-353 (FOIA does not apply to nonprofit corporation that receives public funding to operate aerospace education center, where neither the corporation’s budget nor activities were subject to review by any government body), 83-163 (private hospital that receives Medicare and Medicaid payments is not subject to FOIA).

(b) The FOIA will generally be inapplicable to a private entity that sells supplies, equipment, and other products to a government agency. With respect to services, there is little concern that government might circumvent the FOIA by hiring private contractors. However, this concern is not present when goods are involved, since government cannot produce all of the goods it needs to function and, as a practical matter, has no choice but to purchase materials from the private sector. Ark. Op. Att’y Gen. No. 96-123.

(3) Direct receipt of public funds by the private organization is necessary to trigger the FOIA. Indirect support, such as the use of public property without charge, is not sufficient. Sebastian Cnty. Chapter of Am. Red Cross v. Weatherford, 311 Ark. 656, 846 S.W.2d 641 (1993); Ark. Op. Att’y Gen. Nos. 97-148, 96-267, 96-196, 96-116, 95-077.

(4) A private organization that receives partial financial support from government is partially subject to the FOIA. The act applies only to meetings of the organization’s governing body that are relevant to the task for which it has been hired by government or has been given a government grant. Ark. Op. Att’y Gen. Nos. 96-290, 94-023.

(5) Meetings of the governing body of private organization held after its public funding has come to an end are not covered by the FOIA. Ark. Op. Att’y Gen. No. 94-023. However, FOIA application does not abate simply because a private contractor refuses to accept public funds, absent contract termination or legislative action. Ark. Op. Att’y Gen. No. 2004-223.

Shortly after the FOIA’s passage, the Attorney General suggested that the act applies to a private entity whose board of directors includes government officials. Ark. Op. Att’y Gen. (April 16, 1971). That position is no longer tenable in light of the Supreme Court’s holding that only the direct receipt of public funds by a private organization triggers the act. Sebastian Cnty. Chapter of Am. Red Cross v. Weatherford, 311 Ark. 656, 846 S.W.2d 641 (1993).

6. Multi-state or regional bodies

The meetings of multistate or regional bodies must be held in accordance with the FOIA, as must a joint meeting of two governing bodies. Ark. Op. Att’y Gen. No. 85-173; Inf. Att’y Gen. Op. (Aug. 31, 1987).
Under Act 253 of 2001, the Interstate Commission for Adult Offender Supervision created by interstate compact must give public notice of all its meetings, which “shall be open to the public, except as set forth in the rules or as otherwise provided in the compact.” Act 253 of 2001, art. VII(f)(1). The commission and any of its committees “may close a meeting to the public where it determines by two-thirds vote” that an open meeting would be “likely” to: relate to internal personnel practices; disclose trade secrets or other confidential information; involve accusing someone of a crime or the formal censure of a person; disclose information of a personal nature which, if made public, would constitute a clearly unwarranted invasion of personal privacy; disclose investigatory records compiled for law enforcement purposes; disclose records relating to the commission’s regulation or supervision of an entity; disclose information which, if made public, would endanger the life of a person or the stability of a regulated entity; or relate to the commission’s issuance of a subpoena or its participation in a civil action or proceeding. Act 253 of 2001, art. VII(f)(3).

7. Advisory boards and commissions, quasi-governmental entities

Because groups that simply render advice lack final decision-making authority, they are not governing bodies and their meetings are not subject to the FOIA. Ark. Op. Att’y Gen. No. 2007-224 (curriculum review committee). If, however, an advisory group’s recommendations are automatically accepted or “rubber-stamped” by its parent entity, then it is a de facto governing body and must comply with the act. Ark. Op. Att’y Gen. Nos. 2000-260, 2000-251, 99-407, 98-169, 98-113, 96-074, 91-288.

A county circuit court in 2004 ruled an appointed task force at the University of Arkansas, Fayetteville, was merely an advisory body not subject to FOIA open meeting requirements. The court rejected arguments that University System trustees would “rubber-stamp the task force’s recommendations.” Chris Branam, Judge Dismisses Student’s Suit, Arkansas Democrat-Gazette, Mar. 4, 2004 (digital archive). Trustees ultimately approved unanimously a student government overhaul endorsed by the task force. Chris Branam, UA Trustees Transfer Power Over Student Government Group to Chancellor, Arkansas Democrat-Gazette, Apr. 20, 2004 (digital archive).

8. Other bodies to which governmental or public functions are delegated

If decision-making authority has been delegated by the governing body to a particular group, the open meetings requirement goes along with the delegation. Baxter Cnty. Newspapers, Inc. v. Med. Staff of Baxter Gen. Hosp., 273 Ark. 511, 622 S.W.2d 495 (1981). For example, a committee appointed by a school board to screen candidates for superintendent is a governing body, since it has been assigned the task of eliminating candidates from consideration. Ark. Op. Att’y Gen. No. 94-339.

9. Appointed as well as elected bodies

The fact that a body is appointed rather than elected is immaterial for FOIA purposes; rather, the question is whether it is a “governing body.” See Ark. Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975) (board of trustees at state university; members appointed by the governor); Ark. Op. Att’y Gen. Nos. 96-016 (municipal water and sewer commission, library board; members appointed by the city council), 95-377 (municipal planning commission; members appointed by the city council), 94-339 (committee appointed by school board).

D. What constitutes a meeting subject to the law

The FOIA does not apply to meetings, functions, or events attended by members of a particular governing body and over which they have no control. E.g., Ark. Op. Att’y Gen. No. 94-131 (an arbitration hearing attended by members of a school board is not a meeting for FOIA purposes, since it is not subject to the board’s control).

1. Number that must be present

a. Must a minimum number be present to constitute a "meeting"?

The FOIA is silent as to the number of members of the governing body that must be present for the meeting to be subject to the act. The Arkansas Supreme Court has held that the FOIA applies to meetings of less than a quorum of the governing body and to committee meetings. See Mayor & City Council of El Dorado v. El Dorado Broad. Co., 260 Ark. 821, 544 S.W.2d 206 (1976). According to the Attorney General, the “number of attendees at a meeting is not, in and of itself, dispositive,” and the relevant inquiry is “the extent to which the facts suggest potential evasion of the FOIA.” Ark. Op. Att’y Gen. No. 99-018. For example, “successive meetings of two members prior to action by the governing body” could be viewed as an attempt to “avoid public discussion” and would likely trigger the act. However, “[i]f the two members meet alone, and there is no evidence that the FOIA is being circumvented,” then such a meeting would likely fall outside the act. This is so even though government business is discussed. Id. See also Ark. Op. Att’y Gen. No. 99-014 (it would be unreasonable to suggest that a meeting for FOIA purposes occurs every time school board members gather for a tour of the school, but discussion during the tours of matters likely to come before the board would trigger the act). Meetings at which government business is not discussed, or social functions where the discussion of such business is intermittent and incidental, are not subject to the FOIA. Ark. Op. Att’y Gen. Nos. 95-020, 93-355.

A statute governing county election commissioners provides that “any meeting of two (2) or more commissioners” shall be held pursuant to the FOIA “when official business is conducted.” Ark. Code Ann. § 7-4-105(b). There are only three such commissioners and the presence of two is required for a quorum.

As a general matter, there is no “meeting” for FOIA purposes when one member of a governing body meets with an employee who is not a member. For example, discussions between a school board member and the superintendent of schools are not covered by the act. However, a series of meetings between the superintendent and each board member held for the purpose of making decisions out of the public eye violates the FOIA. Ark. Op. Att’y Gen. No. 2000-111. See also Harris v. City of Ft. Smith, 359 Ark. 355, 197 S.W.3d 461 (2004); Rehab Hosp. Servs. Corp. v. Delta-Hills Health Systems Agency, 285 Ark. 397, 687 S.W.2d 840 (1985).

b. What effect does absence of a quorum have?

It is settled that a quorum of the governing body need not be present for the meeting to be subject to the FOIA. Mayor & City Council of El Dorado v. El Dorado Broad. Co., 260 Ark. 821, 544 S.W.2d 206 (1976); Ark. Op. Att’y Gen. No. 95-098.

b. Deliberation toward decisions

Deliberations of the governing body must be held in public, since the FOIA entitles the public to learn not only of action taken on particular matters, but also the reasons for such action. Ark. Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975); Ark. Op. Att’y Gen. Nos. 91-175, 80-016. The FOIA reaches every step in the decision-making process, not simply the point at which the decision is announced. Ark. Op. Att’y Gen. No. 95-098. One member of the quorum contacting other members to ensure that they understand the meeting agenda is not considered to be deliberations subject to the FOIA. Ark. Okla. Gas Corp. v. MacSteel Div. of Quanex, 370 Ark. 481, 262 S.W.3d 147 (2007).

3. Electronic meetings

a. Conference calls and video/Internet conferencing

A telephone meeting must be conducted in accordance with the FOIA. Such a meeting is permissible if sufficient safeguards are employed, such as proper notice and the availability of telephones for the public and press. Thus, an agency might arrange a conference call among members of its board, with a speaker phone set up in a meeting room where members of the public and press may listen to the proceedings. Ark. Op. Att’y Gen. Nos. 2000-102, 2000-096. However, polling individual members of the governing body one-by-one without such safeguards violates the act. Harris v. City of Ft. Smith, 359 Ark. 355, 197 S.W.3d 461 (2004); Rehab Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency Inc., 285 Ark. 397, 687 S.W.2d 840 (1985). See also Ark. Op. Att’y Gen. Nos. 99-018, 94-167. But see Ark. Okla. Gas Corp. v. MacSteel Div. of Quanex, 370 Ark. 481, 262 S.W.3d 147 (2007) (county judge contacting members of quorum court to ensure they understood the next meeting’s agenda did not constitute a meeting).

A telephone conversation between two members of a governing body to discuss official business does not run afoul of the FOIA if there are not “successive conversations suggesting circumvention of the open meeting requirement.” Ark. Op. Att’y Gen. No. 99-018. Such circumvention might occur when “[s]erial telephone conversations” among members of the governing body have taken place. Id.

b. E-mail

An exchange of e-mail messages or faxes is not a meeting, since these activities are analogous to written correspondence. Ark. Op. Att’y Gen. Nos. 2000-096, 99-018. However, a real-time, interactive communication via a local network or the Internet, including “sequential or circular” e-mails, could probably constitute a meeting for FOIA purposes. Ark. Op. Att’y Gen. Nos. 2008-055, 2005-166. Such a “virtual” meeting is analogous to a telephone conference call, not to written correspondence. To comply with the FOIA, the governing body would be required to allow the public to monitor the electronic discussion, e.g., by logging on to the computer network. Ark. Op. Att’y Gen. No. 2000-096.

c. Text messages

There is no statutory or case law concerning text messages, specifically, but the Attorney General has opined that sequential electronic discussions could be considered meetings under the FOIA. Ark. Op. Att’y Gen. No. 2008-055.

d. Instant messaging

There is no statutory or case law concerning instant messaging, specifically, but the Attorney General has opined that sequential electronic discussions could be considered meetings under the FOIA. Ark. Op. Att’y Gen. No. 2008-055. Public access to such meetings could be gained by logging onto the computer network. Id.

e. Social media and online discussion boards

There is no statutory or case law concerning social media and online discussion boards, specifically, but the Attorney General has opined that sequential electronic discussions could be considered meetings under the FOIA. Ark. Op. Att’y Gen. No. 2008-055. Public access to such meetings could be gained by logging onto the computer network. Id.

E. Categories of meetings subject to the law

1. Regular meetings

a. Definition

The FOIA applies to “all meetings, formal or informal, special or regular.” Ark. Code Ann. § 25-19-106(a). There is no definition of “regular” meetings; in practice, however, the term apparently refers to regularly scheduled meetings of governing bodies. Ark. Op. Att’y Gen. No. 93-299.

b. Notice

The FOIA does not establish a time requirement for notice of regular meetings. However, the governing body “must give notice within a period of time that is reasonably sufficient to allow [persons] who have requested notice to arrange to attend the meeting.” Ark. Op. Att’y Gen. No. 98-033. See also Ark. Op. Att’y Gen. (Mar. 1, 1971) (six days advance notice is acceptable). The FOIA does not specify the form that the notice must take. Whether a particular form (e.g., e-mail, fax, voice-mail) satisfies the act must be determined on a case-by case basis. Ark. Op. Att’y Gen. No. 96-074.

The FOIA does not require that notice of a meeting be posted or that an agency purchase newspaper advertising to inform the public of a meeting. However, other statutes, city ordinances, or administrative regulations may impose this requirement on a particular agency. Ark. Op. Att’y Gen. No. 81-30; Ark. Op. Att’y Gen. (Mar. 4, 1969).

The FOIA does not require that an agenda or listing of subjects to be considered at the meeting be included in the notice. Ark. Op. Att’y Gen. Nos. 2001-012, 98-033. However, other statutes, ordinances, or regulations may impose such a requirement upon particular governing bodies.

The “time and place” of the meeting must be stated in the notice. Ark. Code Ann. § 25-19-106(b)(1). A schedule of upcoming meetings is sufficient. Ark. Op. Att’y Gen. No. 2005-167; Ark. Op. Att’y Gen. (Oct. 4, 1971). A meeting must not be set at a time that would effectively avoid the public meeting requirement of the FOIA. Ark. Op. Att’y Gen. Nos. 96-317, 95-308, 92-162. If the location of the meeting has changed since notice was given, a second notice containing the correct information is required. Ark. Op. Att’y Gen. No. 97-327.

c. Minutes

Nothing in the FOIA requires a governing body to keep minutes of its proceedings, though several other statutes place that duty upon particular entities. E.g., Ark. Code Ann. §§ 14-14-903(a) (county quorum court), 17-82-205(e) (State Board of Dental Examiners). If minutes or similar records are kept or a tape recording of the meeting is made, these materials are open to the public. Ark. Op. Att’y Gen. Nos. 87-284, 86-316.

The press and public have a right to ascertain how each member of the governing body voted on a particular question, no matter what method of voting is employed. If a ballot is used, each ballot must be signed by the member casting it and made available for public inspection. Depoyster v. Cole, 298 Ark. 203, 766 S.W.2d 606 (1989), overruled on other grounds byHarris v. City of Ft. Smith, 366 Ark. 277, 234 S.W.3d 875 (2006); Ark. Op. Att’y Gen. Nos. 92-124, 88-171. If an initial vote is later expunged and another vote taken, ballots from the first vote must also be made available. Ark. Op. Att’y Gen. No. 74-72.

2. Special or emergency meetings

a. Definition

As is the case with regular meetings, the FOIA does not define special or emergency meetings. Anything other than a regular meeting would apparently fall into this category. If, for example, a city council adjourned a regular meeting only to reconvene moments later, the new meeting would be a special meeting. Ark. Op. Att’y Gen. Nos. 98-104, 95-308, 93-308, 93-299.

b. Notice requirements

Notice must be given at least two hours prior to the emergency or special meeting. Ark. Code Ann. § 25-19-106(b)(2). See Ark. Op. Att’y Gen. Nos. 95-308, 93-299. The FOIA does not specify the form that the notice must take. Whether a particular form (e.g., e-mail, fax, voice-mail) satisfies the act must be determined on a case-by case basis. Ark. Op. Att’y Gen. No. 96-074. For example, a notice for a 7:00 a.m. meeting, faxed during the night, is not sufficient if the sender is aware that no one will be present to receive the fax at the time that it is sent. Id. Verbal notice at an earlier public meeting is adequate only if representatives of all media who are entitled to notice are present. Id.

Notice must be given to news media located in the county where the meeting is to be held and to news media located elsewhere which cover regular meetings of the governing body. Ark. Code Ann. § 25-19-106(b)(2). See Ark. Op. Att’y Gen. No. 96-074. A request for such notice is necessary. Elmore v. Burke, 337 Ark. 235, 987 S.W.2d 730 (1999); Nance v. Williams, 263 Ark. 237, 564 S.W.2d 212 (1978). A request for notice may be made orally or in writing, Ark. Op. Att’y Gen. No. 99-157, and repeated requests are not required. Ark. Op. Att’y Gen. No. 97-327.

The FOIA does not require that notice of a meeting be posted or that an agency purchase newspaper advertising to inform the public of a meeting. However, other statutes, city ordinances, or administrative regulations may impose this requirement on a particular agency. Ark. Op. Att’y Gen. No. 81-30; Ark. Op. Att’y Gen. (Mar. 4, 1969). The FOIA does not require that an agenda or listing of subjects to be considered at the meeting be included in the notice, Ark. Op. Att’y Gen. No. 98-033, but other statutes, ordinances, or regulations may impose such a requirement upon particular governing bodies.

The notice must contain the “time, place, and date” of the meeting. Ark. Code Ann. § 25-19-106(b)(2). The meeting must not be set at a time that would “effectively avoid the public meeting requirement of the FOIA.” Ark. Op. Att’y Gen. No. 92-162. See also Ark. Op. Att’y Gen. Nos. 95-308, 93-299. If the location of the meeting has changed since notice was initially given, a second notice containing the correct information is required at least two hours before commencement of the meeting. Ark. Op. Att’y Gen. No. 97-327. If proper notice is not given, action taken at the meeting may be subject to invalidation. See Rehab Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency Inc., 285 Ark. 397, 687 S.W.2d 840 (1985).

c. Minutes

Nothing in the FOIA requires a governing body to keep minutes of its proceedings, though several other statutes place that duty upon particular entities. E.g., Ark. Code Ann. §§ 14-14-903(a) (county quorum court), 17-82-205(e) (State Board of Dental Examiners). If minutes or similar records are kept or a tape recording of the meeting is made, these materials are open to the public. Ark. Op. Att’y Gen. Nos. 87-284, 86-316.

The press and public have a right to ascertain how each member of the governing body voted on a particular question, no matter what method of voting is employed. If a ballot is used, each ballot must be signed by the member casting it and made available for public inspection. Depoyster v. Cole, 298 Ark. 203, 766 S.W.2d 606 (1989), overruled on other grounds byHarris v. City of Ft. Smith, 366 Ark. 277, 234 S.W.3d 875 (2006); Ark. Op. Att’y Gen. Nos. 97-016, 92-124, 88-171. If an initial vote is later expunged and another vote taken, ballots from the first vote must also be made available. Ark. Op. Att’y Gen. No. 74-072.

3. Closed meetings or executive sessions

a. Definition

An executive session is permissible when the FOIA or another statute so provides. Ark. Code Ann. § 25-19-106(a) & (c). The FOIA itself contains three exemptions. First, a governing body may hold a closed meeting “for the purpose of considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee.” Ark. Code Ann. § 25-19-106(c)(1). Second, state boards and commissions may meet in executive session “for purposes of preparing examination materials and answers to examination materials . . . for licensure” and to administer the examinations. Id. § 25-19-106(c)(5)(A) & (B) (added by Act 1259 of 2001). Third, “a public agency may meet in executive session for the purpose of considering, evaluating, or discussing matters pertaining to public water system security or municipally owned utility system security as described in § 25-19-105(b)(18).” Id. § 25-19-106(c)(6)(A) (added by Act 763 of 2003). There are statutes that prohibit certain governing bodies from meeting in an executive session. See, e.g., Ark. Code Ann. §§ 13-3-203 (Black History Commission), 14-201-122 (municipal utility commission), 24-7-304 (Board of Trustees of Arkansas Teacher Retirement System).

b. Notice requirements

The notice requirements for regular and special or emergency meetings also apply to meetings which will be closed to the public in whole or in part under an exception to the FOIA. Ark. Op. Att’y Gen. No. 99-157; Ark. Op. Att’y Gen. (Nov. 22, 1971).

The FOIA does not establish a time requirement for notice of regular meetings. However, the governing body “must give notice within a period of time that is reasonably sufficient to allow [persons] who have requested notice to arrange to attend the meeting.” Ark. Op. Att’y Gen. No. 98-033. See also Ark. Op. Att’y Gen. (Mar. 1, 1971) (six days advance notice is acceptable). For special or emergency meetings, notice must be given at least two hours in advance to news organizations that have requested notification. Ark. Code Ann. § 25-19-106(b)(2). The FOIA does not specify the form that the notice must take. Whether a particular form (e.g., e-mail, fax, voicemail) satisfies the act must be determined on a case-by case basis. Ark. Op. Att’y Gen. No. 96-074. For example, a notice for a 7:00 a.m. meeting, faxed during the night, is not sufficient if the sender is aware that no one will be present to receive the fax at the time that it is sent. Id. Verbal notice at an earlier public meeting is adequate only if representatives of all media who are entitled to notice are present. Id.

Notice of regular meetings must be furnished to anyone who requests it. Ark. Code Ann. § 25-19-106(b)(1). A person is entitled to notice only if he or she so requests. Elmore v. Burke, 337 Ark. 235, 987 S.W.2d 730 (1999); Nance v. Williams, 263 Ark. 237, 564 S.W.2d 212 (1978). Organizations as well as individuals may request notice. Ark. Op. Att’y Gen. (Mar. 1, 1971). For special or emergency meetings, notice must be given to news media located in the county where the meeting is to be held and to news media located elsewhere which cover regular meetings of the governing body. Ark. Code Ann. § 25-19-106(b)(2). See Ark. Op. Att’y Gen. No. 96-074. A request for notice may be made orally or in writing. Ark. Op. Att’y Gen. No. 99-157.

The FOIA does not require that notice of a meeting be posted or that an agency purchase newspaper advertising to inform the public of a meeting. However, other statutes, city ordinances, or administrative regulations may impose this requirement on a particular agency. See Ark. Op. Att’y Gen. No. 81-30; Ark. Op. Att’y Gen. (Mar. 4, 1969). The FOIA does not require that an agenda or listing of subjects to be considered at the meeting be included in the notice, Ark. Op. Att’y Gen. No. 98-033, but other statutes, ordinances, or regulations may impose such a requirement upon particular governing bodies.

For regular meetings, the “time and place” of the meeting must be stated in the notice. Ark. Code Ann. § 25-19-106(b)(1). A schedule of upcoming meetings is sufficient. 2005-167; Ark. Op. Att’y Gen. (Oct. 4, 1971). The notice for special meetings must contain the “time, place, and date” of the meeting. Id. § 25-19-106(b)(2). A meeting must not be set at a time that would “effectively avoid the public meeting requirement of the FOIA.” Ark. Op. Att’y Gen. No. 92-162. See also Ark. Op. Att’y Gen. Nos. 96-317, 95-308, 93-299. If proper notice is not given, action taken at the meeting may be subject to invalidation. See Rehab Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency Inc., 285 Ark. 397, 687 S.W.2d 840 (1985).

c. Minutes

Nothing in the FOIA requires a governing body to keep minutes of its proceedings, though several other statutes place that duty upon particular entities. E.g., Ark. Code Ann. §§ 14-14-903(a) (county quorum court), 17-82-205(e) (State Board of Dental Examiners). The minutes must reflect the vote and the decision reached. Ark. Op. Att’y Gen. No. 87-284. If minutes or similar records are kept, they are open to the public. Ark. Op. Att’y Gen. Nos. 87-284, 86-316.

d. Requirement to meet in public before closing meeting

The Attorney General has opined that a governing body holding an executive session must convene in public before retiring to executive session. Only a member of the body may move that an executive session be held. Ark. Op. Att’y Gen. Nos. 96-009, 91-070. If the closed meeting is to be held pursuant to the FOIA’s personnel exemption, it must be preceded by a public meeting at which the “specific purpose” of the executive session is announced. Ark. Code Ann. § 25-19-106(c)(1). Following an executive session, the body must reconvene in public and formally vote on the matter discussed at the closed meeting. Ark. Code Ann. § 25-19-106(c)(4); Yandell v. Havana Bd. of Educ., 266 Ark. 434, 585 S.W.2d 927 (1979); Ark. Op. Att’y Gen. No. 96-052.

e. Requirement to state statutory authority for closing meetings before closure

Before going into executive session pursuant to the FOIA’s personnel exemption, the governing body must first announce in public the “specific purpose” of the closed meeting. Ark. Code Ann. § 25-19-106(c)(1)(B). If the executive session is held pursuant to another statute, however, then this requirement — which was added to the personnel exemption in 1999 — should not apply. Nonetheless, it is a good idea for governing bodies to state publicly the purpose of any closed meeting, as Attorney General’s opinions have suggested. Ark. Op. Att’y Gen. Nos. 96-052, 96-009, 90-239.

By using the term “specific purpose” in Section 25-19-106(c)(1)(B), the General Assembly made plain that the announcement must reflect why the governing body is invoking the personnel exemption. For example, “we are going into executive session to consider the promotion of an employee” would suffice, since promotion is one of the matters that can be the basis for a closed meeting under the statute. By contrast, a general statement that “we are going into executive session to consider personnel matters” would not satisfy the requirement. An earlier version of the 1999 legislation would have required the governing body to disclose the name of the particular employee, officer or candidate for employment being considered, but this provision was deleted. See S.B. 901, 82d General Assembly (March 15, 1999). As a practical matter, the name of the individual under consideration will have to be disclosed if any action is taken by the governing body, which must reconvene in public after the executive session and take a vote. Ark. Code Ann. § 25-19-106(c)(4).

f. Tape recording requirements

There is no requirement that executive sessions be tape-recorded; however, the practice has been encouraged. Commercial Printing Co. v. Rush, 261 Ark. 468, 549 S.W.2d 790 (1977); Ark. Op. Att’y Gen. No. 74-078. An audio or video tape may not be a record within the meaning of Section 25-19-103(7)(A) of the FOIA because it can be viewed as “the embodiment of the meeting.” Ark. Op. Att’y Gen. No. 91-323. If a tape is treated as a record, it is generally exempt from disclosure, for otherwise the purpose of allowing executive sessions would be thwarted. Id.

F. Recording/broadcast of meetings

1. Sound recordings allowed

Members of the press and the public have the right to make audio recordings of meetings, so long as the mechanics of recording are not disruptive. Ark. Op. Att’y Gen. No. 83-213. Similarly, the media have the right to broadcast a meeting “live,” subject to reasonable limitations to prevent disruption or interference with the meeting. Ark. Op. Att’y Gen. No. 77-086.

2. Photographic recordings allowed

Members of the press and the public have the right to make video recordings of meetings, so long as the mechanics of recording are not disruptive. Ark. Op. Att’y Gen. No. 83-213. Similarly, the media have the right to broadcast a meeting “live,” subject to reasonable limitations to prevent disruption or interference with the meeting. Ark. Op. Att’y Gen. No. 77-086.

G. Access to meeting materials, reports and agendas

Nothing in the FOIA requires a governing body to keep minutes of its proceedings, though several other statutes place that duty upon particular entities. E.g., Ark. Code Ann. §§ 14-14-903(a) (county quorum court), 17-82-205(e) (State Board of Dental Examiners). If minutes or similar records are kept or a tape recording of the meeting is made, these materials are open to the public. Ark. Op. Att’y Gen. Nos. 87-284, 86-316.

The press and public have a right to ascertain how each member of the governing body voted on a particular question, no matter what method of voting is employed. If a ballot is used, each ballot must be signed by the member casting it and made available for public inspection. Depoyster v. Cole, 298 Ark. 203, 766 S.W.2d 606 (1989), overruled on other grounds byHarris v. City of Ft. Smith, 366 Ark. 277, 234 S.W.3d 875 (2006); Ark. Op. Att’y Gen. Nos. 92-124, 88-171. If an initial vote is later expunged and another vote taken, ballots from the first vote must also be made available. Ark. Op. Att’y Gen. No. 74-72.

II. Exemptions and other legal limitations

A. Exemptions in the open meetings statute

1. Character of exemptions

The FOIA itself contains only three exemptions, all specific in character. First, a governing body may hold a closed meeting “for the purpose of considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee.” Ark. Code Ann. § 25-19-106(c)(1)(A). Second, state boards and commissions may meet in executive session “for purposes of preparing examination materials and answers to examination materials . . . for licensure” and to administer the examinations. Id. § 25-19-106(c)(5)(A) & (B) (added by Act 1259 of 2001). Third, “a public agency may meet in executive session for the purpose of considering, evaluating, or discussing matters pertaining to public water system security or municipally owned utility system security as described in § 25-19-105(b)(18).” Id. § 25-19-106(c)(6) (added by Act 763 of 2003). Any exemption to the open meetings provision enacted after June 30, 2009 must specifically cite the FOIA. Ark. Code Ann. § 25-19-110.

The personnel exemption is discretionary rather than mandatory, and a governing body may choose to meet in public on a personnel matter otherwise within the exemption. Ark. Code Ann. § 25-19-106(c)(1)(A); Ark. Op. Att’y Gen. Nos. 99-157, 96-009, 74-078. The exemption for licensing exam preparation and administration provides that state boards and commissions “may meet” in executive session and is thus permissive in nature. Ark. Code Ann. § 25-19-106(c)(5). Similarly, the water system security exemption provides that public agencies “may meet” in executive session and is thus permissive in nature. Id. § 25-19-106(c)(6).

2. Description of each exemption

(1) The personnel exemption is limited to consideration of the matters enumerated in Ark. Code Ann. § 25-19-106(c)(1): “employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee.”

(a) The exemption applies only to matters involving individual officers or employees. Ark. Op. Att’y Gen. Nos. 96-371, 94-339, 91-070. Thus, a body may meet in executive session to screen and review applications for a position, Ark. Op. Att’y Gen. Nos. 94-339, 93-403; to consider discharging or disciplining an employee, Ark. Op. Att’y Gen. No. 81-213; to discuss a pay raise or promotion, Ark. Op. Att’y Gen. (June 10, 1974); to review an employee’s performance, if that review may lead to promotion, demotion, or changed compensation, Ark. Op. Att’y Gen. No. 88-058; or to take a non-binding “vote of confidence” with respect to an employee, if the purpose of the meeting is to consider the person’s continued employment or other personnel action. Ark. Op. Att’y Gen. No. 91-280.

(b) By contrast, an executive session to discuss general salary matters, an across-the-board pay increase, or overall performance of employees as a group is not permissible. Ark. Op. Att’y Gen. Nos. 91-070, 77-144. Similarly, a governing body may not meet in closed session to establish criteria for a particular position or to establish procedures for filling a vacancy. Ark. Op. Att’y Gen. No. 87-080.

(c) The exemption applies only to meetings concerning a “public officer or employee.” Elected or appointed public officials plainly fall within the definition, as do paid public employees. See, e.g., Ark. Op. Att’y Gen. Nos. 97-067 (city planning commissioner), 96-016 (appointed member of city board or commission), 85-155 (elected county officials), 81-213 (public school teachers), 79-140 (county judge), 76-141 (state employees).

(ii) Licensed professionals, such as physicians, real estate agents, and attorneys are not within the definition, and meetings of regulatory boards with oversight of such professionals cannot be closed under the personnel exemption. Ark. Op. Att’y Gen. No. 84-091. Similarly, because persons claiming unemployment benefits are not employees of the Employment Security Department, its board of review may not invoke the exemption when considering unemployment claims. Ark. Op. Att’y Gen. No. 2001-040.

(iii) The exemption is also inapplicable to a meeting of a governing body to make appointments to an ad hoc advisory committee composed of persons who are not members of the governing body. Ark. Op. Att’y Gen. No. 74-039.

(d) If an evidentiary hearing is held in connection with a personnel matter (such as the termination or suspension of a public employee), the hearing itself must be open to the public, but the governing body may deliberate in executive session. Ark. State Police Comm’n v. Davidson, 252 Ark. 137, 477 S.W.2d 852 (1972); Ark. Op. Att’y Gen. Nos. 99-100, 85-181.

(e) All members of the governing body, including ex officio members, may attend an executive session. Ark. Op. Att’y Gen. Nos. 96-063, 95-227. In addition to the members, only those persons listed in the FOIA may attend an executive session held pursuant to the personnel exemption: the person holding the top administrative position at the agency, department or office involved: the employee’s immediate supervisor; the employee himself; and, in connection with hiring decisions, any person being interviewed for the “top administrative position” within the agency, department, or office. These persons have no right to attend, but may be present at the discretion of the governing body. Ark. Code Ann. § 25-19-106(c)(2)(A) & (B). See also Ark. Op. Att’y Gen. Nos. 2001-286, 97-130, 81-213. The governing body may elicit information from those persons permitted to attend an executive session; if that were not the case, allowing their attendance “would serve little purpose.” Ark. Op. Att’y Gen. No. 97-130.

(i) No one other than the persons included in the statutory list may attend an executive session held pursuant to the personnel exemption. See, e.g., Ark. Op. Att’y Gen. Nos. 97-130 (legal counsel for either the governing body or the employee), 97-067 (candidates for city planning commissioner), 96-269 (candidates for vacant city council position), 91-323 (county employee who could provide information about alleged misdeeds of another employee, unless he or she is that employee’s immediate supervisor or the top administrator of the agency), 88-082 (staff member who is not school superintendent or teacher’s immediate supervisor), 86-036 (discharged employee), 81-227 (police officers involved in investigation of city employees).

(ii) Although the governing body’s attorney cannot attend the executive session, Ark. Op. Att’y Gen. Nos. 97-130, 85-181, a member of the body who serves as its lawyer is entitled to be present. Inf. Att’y Gen. Op. (Feb. 19, 1985). The Attorney General has also opined that a lawyer may not attend an executive session held under the authority of another statute, such as the provision authorizing closed meetings for student disciplinary matters. Ark. Op. Att’y Gen. No. 87-478. This conclusion is highly dubious because Section 25-19-106(c)(2) deals only with those who may attend a closed meeting to discuss personnel matters. If a governing body meets in executive session pursuant to the FOIA’s licensing exemption, Ark. Code Ann. § 25-19-106(c)(5), or a specific statute that qualifies as an FOIA exemption, the body should, in its discretion, be able to permit attorneys (and others) to attend. See Ark. Op. Att’y Gen. No. 96-009 (parents may attend closed school board meeting held for the purpose of discussing a student’s expulsion).

(f) As amended in 1999, the statutory provision covering the personnel exemption states that “[t]he specific purpose of the executive session shall be announced in public before going into executive session.” Ark. Code Ann. § 25-19-106(c)(1). By using the term “specific purpose,” the legislature made plain that the announcement must reflect why the governing body is invoking the personnel exemption. For example, “we are going into executive session to consider the promotion of an employee” would suffice, since promotion is one of the matters that can be the basis for a closed meeting. By contrast, a general statement that “we are going into executive session to consider personnel matters” would not satisfy the specificity requirement. An earlier version of the amendatory legislation would have required the governing body to disclose the name of the particular employee, officer or candidate for employment. S.B. 901, 82d General Assembly (March 15, 1999). As a practical matter, the name of the individual being considered will have to be disclosed if any action is taken by the governing body, which must reconvene in public after the executive session and take a vote. Ark. Code Ann. § 25-19-106(c)(4). See Ark. Op. Att’y Gen. No. 96-009.

(2) The licensing exam exemption was added by Act 1259 of 2001. It provides that state boards and commissions “may meet in executive session for purposes of preparing examination materials and answers to examination materials which are administered to applicants for licensure . . . .” Ark. Code Ann. § 25-19-106(c)(5)(A). Also, boards and commissions “are excluded from [the FOIA] for the administering of examinations to applicants for licensure.” Id. § 25-19-106(c)(5)(B).

(b) Unlike the personnel exemption, Section 25-19-106(c)(5) contains no limitations on who may attend the executive session. Therefore, state licensing boards or commissions may allow staff members, consultants, attorneys, and other persons to be present at a closed meeting held pursuant to the exemption.

(3) The water system security exemption was added by Act 763 of 2003. The exemption provides that “a public agency may meet in executive session for the purpose of considering, evaluating, or discussing matters pertaining to public water system security or municipally owned utility system security as described in § 25-19-105(b)(18).” Ark. Code Ann. § 25-19-106(c)(6)(A).

“Municipally owned utility system” was added to the exemption by Act 186 of 2015. “Municipally owned utility system” was defined as “a utility system owned or operated by a municipality that provides: (i) Electricity; (ii) Water; (iii) Wastewater; (iv) Cable television; (v) Broadband service . . . [and] includes without limitation a: (i) Consolidated waterworks system . . . ; (ii) Utility system managed or operated by a nonprofit corporation . . . ; and (iii) Utility system owned or operated by a municipality or by a consolidated utility district . . . .” Act 186 of 2015, § 2. According to the emergency clause of the enacting legislation, this exemption was necessary because “public availability of certain information held by municipally owned utility systems jeopardizes the security of the utility system and of the citizens that receive services from the system.” Act 186 of 2015, § 5.

“Public water system” was defined by the act to “mean[] all facilities composing a system for the collection, treatment, and delivery of water to the general public, including, but not limited to, reservoirs, pipelines, reclamation facilities, processing facilities, and distribution facilities, and regional water distribution districts under The Regional Water Distribution Act, § 14-116-101 et seq..” Ark. Code Ann. § 25-19-103(8).

(a) According to the emergency clause of the enacting legislation, this exemption was necessary because information “could be obtained for terroristic purposes, including contamination and destruction of public water systems.” Act 763 of 2003, § 4.

(b) The exemption and its companion definition of public water system were to expire on July 1, 2005 and were extended to July 1, 2013, by Act 99 of 2011. Ark. Code Ann. §§ 25-19-103(6)(B), -106(c)(6)(B).

(c) Unlike the personnel exemption, Section 25-19-105(c)(6) contains no limitations on who may attend the executive session. Therefore, public agencies may allow staff members, consultants, attorneys, and other persons to be present at a closed meeting held pursuant to the exemption.

(d) This FOIA exemption expressly overrides Ark. Code Ann. § 14-116-308(d)(1), which generally prohibits the board of directors of a regional water distribution district from entering executive session at any time. Accord Ark. Code Ann. § 14-116-308(d)(2) (added by Act 1210 of 2003). However, Ark. Code Ann. § 14-250-110(d) generally prohibits the board of directors of a wastewater treatment district from entering executive session and was not similarly amended in 2003. Thus one may infer that as a more specific provision, the prohibition on executive sessions by wastewater treatment district boards remains operative. See Ark. Op. Att’y Gen. Nos. 97-178 (recognizing principle of statutory interpretation that more specific provision controls over more general provision), 96-016 n.2 (suggesting that wastewater district prohibition controls over later-in-time FOIA exemption for personnel matters, as Attorney General earlier reasoned that regional water distribution district prohibition, before 2003 amendment, controlled over later-in-time FOIA exemption for personnel matters, Ark. Op. Att’y Gen. No. 87-470).

B. Any other statutory requirements for closed or open meetings

(1) Like the open records provisions of the FOIA, the act’s open meeting section incorporates other statutes that permit or require closed meetings. Under Ark. Code Ann. § 25-19-106(a), meetings must be open to the public “[e]xcept as otherwise specifically provided by law.” The phrase “by law” has been interpreted to mean “by statute,” and the statute must be specific in creating the exemption. Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968) (statute creating an evidentiary privilege for attorney-client communications is not an exemption that would allow a governing body to meet with its attorney in private). See also Ark. Op. Att’y Gen. No. 2001-040 (Ark. Code Ann. § 11-10-314(a)(1), which provides that “information obtained by the Director of the Arkansas Employment Security Department . . . shall be held confidential,” does not authorize closed meetings); Ark. Op. Att’y Gen. No. 97-298 (Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, neither qualifies as an exemption nor supersedes the FOIA under the Supremacy Clause).

(2) Hundreds of Arkansas statutes make some reference to public hearings or public meetings, but most either state simply that an entity is to conduct its business in public, e.g., Ark. Code Ann. § 23-110-203(a)(1) (Arkansas Racing Commission), or set forth an agency’s obligation to hold meetings without specifying whether they are to be open or closed, e.g., Ark. Code Ann. § 3-2-201(e) (Alcoholic Beverage Control Board). Under these statutes, the FOIA plainly demands an open meeting unless the personnel exemption or another statutory exemption applies.

(3) More than a dozen statutes qualify as exemptions to the FOIA. Also, the constitution specifically gives discretion to both houses of the legislature and committees of the whole to meet in private “when the business is such as ought to be kept secret.” Ark. Const. art. V, § 13. Exemptions enacted after June 30, 2009 must cite the FOIA. Ark. Code Ann. § 25-19-110. Illustrative statutes include:

(b) Ark. Code Ann. § 6-18-507(d)(2) (school boards may meet in executive session in student expulsion cases “if requested by the parent or guardian of the student”). See Ark. Op. Att’y Gen. Nos. 96-009, 87-478. As amended in 1997, Section 6-18-507 draws a distinction between a suspension from school (dismissal not to exceed 10 days) and an expulsion (dismissal for more than 10 days). The provision for closed meetings appears in paragraph (d), which deals with expulsions. A circuit court has held that the statute “provides for an executive session only in the case of expulsion hearings” and that a school board must meet in public when considering an appeal from a student who has been suspended. Troutt Brothers Inc. v. Valley View School Dist., No. CIV-2000-343(F) (Craighead County Cir. Ct., July 2, 2000).

(f) Ark. Code Ann. § 16-10-404(b)(2) (preliminary proceedings of Judicial Discipline and Disability Commission are confidential, and commission members may deliberate in executive session at the close of public hearings). If a judge waives the statutory right to a closed probable-cause hearing, then the hearing must be public. Griffen v. Arkansas Judicial Discipline and Disability Comm’n, 368 Ark. 557, 247 S.W.3d 816 (2007).

(4) If an executive session is held pursuant to one of these statutes, the governing body may presumably permit anyone to attend, unless the statute provides otherwise. The provisions of Ark. Code Ann. § 25-19-106(c)(2) specifying those persons who may attend a closed meeting apply only to executive sessions under the personnel exemption. See Ark. Op. Att’y Gen. No. 96-009. But see Ark. Op. Att’y Gen. No. 87-478. Similarly, the requirement that the purpose of the executive session be announced appears only in the statutory provision covering the personnel exemption, Ark. Code Ann. § 25-19-106(c)(1), and is therefore not applicable when the executive session is held pursuant to another statute.

C. Court mandated opening, closing

Exemptions to the FOIA can be created only by statute. Accordingly, the courts are not free to fashion their own exemptions via the common law. Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753. However, a court may presumably order that a meeting be closed in order to protect an individual’s constitutional right to privacy. See McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989). This right is not absolute and must at times yield to societal interests in disclosure. Ark. Op. Att’y Gen. No. 96-009. See also Ark. Op. Att’y Gen. No. 87-478 (student’s right to privacy not violated by public hearing).

III. Meeting categories - open or closed

A. Adjudications by administrative bodies

1. Deliberations closed, but not fact-finding

Unless the FOIA or another statute permits a closed session, hearings and deliberations of an administrative body in its quasi-judicial role must be open to the public. Ark. Op. Att’y Gen. Nos. 91-175, 84-091, 79-144. But see Baxter Cnty. Newspapers Inc. v. Med. Staff of Baxter Gen. Hosp., 273 Ark. 511, 622 S.W.2d 495 (1981) (suggesting that deliberative session may be in private). If the FOIA’s personnel exemption applies, the body’s deliberation may be held in executive session, although the hearing itself must be open to the public. Ark. State Police Comm’n v. Davidson, 252 Ark. 137, 477 S.W.2d 852 (1972); Ark. Op. Att’y Gen. No. 85-181.

B. Budget sessions

The FOIA does not exempt meetings at which budget matters are considered. See Ark. Op. Att’y Gen. No. 74-28 (state board cannot meet in closed session to decide which of several programs are to be funded). Because the act’s open meetings requirement applies only to governing bodies, a meeting of agency staff to review financial questions or prepare budget recommendations would not be open to the public. Other statutes touching on the issue seem to contemplate that budget sessions of governing bodies will be held in public. E.g., Ark. Code Ann. §§ 14-47-123, 14-47-125 (city board of directors).

C. Business and industry relations

Meetings to discuss attracting new business to the community are not exempt from the FOIA. Ark. Op. Att’y Gen. Nos. 2000-260 (meetings of nonprofit economic development corporation that receives county sales tax revenue to support its activities). Similarly, the governing boards of various state entities established to foster industrial development would be required to meet in public on such matters. Ark. Op. Att’y Gen. No. 77-145 (FOIA does not exempt meetings of Arkansas Economic Development Commission to “discuss specific confidential prospects”). By statute, however, meetings of “the review committee of the Arkansas Economic Development Commission established for the purpose of giving preliminary review” to applications under the Industrial Revenue Bond Law “shall not be open to the public.” Ark. Code Ann. § 15-4-606(b)(2)(B). This statute also extends confidentiality to meetings of the commission’s staff; as noted previously, however, staff meetings are not subject to the FOIA.

D. Federal programs

There are apparently no statutory provisions dealing with meetings to discuss federal programs. If, however, federal statutes or regulations demand closed sessions, these provisions will be controlling. Ark. Op. Att’y Gen. No. 85-186 (“federal law will control in the event of conflict with state law”).

E. Financial data of public bodies

The FOIA does not exempt meetings at which financial issues are considered. See Ark. Op. Att’y Gen. No. 74-28 (state board cannot meet in closed session to decide which of several programs are to be funded). Because the act’s open meetings requirement applies only to governing bodies, a meeting of agency staff to review financial questions or prepare budget recommendations would not be open to the public. Other statutes touching on the issue seem to contemplate that budget sessions of governing bodies will be held in public. E.g., Ark. Code Ann. §§ 14-47-123, 14-47-125 (city board of directors).

Although the FOIA’s “competitive advantage” exemption protects this information when embodied in the form of records, nothing in the act allows a closed session to discuss such matters. Some statutes, however, give agencies broad discretion to safeguard such information and could be read so as to allow closed meetings. E.g., Ark. Code Ann. § 23-2-316(b) (Public Service Commission). Other statutes allow in camera judicial proceedings in cases involving trade secrets. E.g., Ark. Code Ann. §§ 4-75-605, 4-88-111(c). See also Rule 507, Ark. R. Evid.

G. Gifts, trusts and honorary degrees

Because these matters are not exempted by statute, the meeting must be open to the public. However, the FOIA’s open meetings requirement generally applies only to a “governing body” of an entity subject to the act. Thus, if a state university planned to award an honorary degree, a meeting of administrators to consider the issue and make a recommendation to the university president would not be open to the public, since the administrators do not constitute a governing body.

H. Grand jury testimony by public employees

Grand juries are expressly excluded from the list of bodies subject to the FOIA’s open meetings requirement. Ark. Code Ann. § 25-19-106(a). There is no exception to this provision that would require a grand jury to meet in public when hearing testimony by or against a public employee.

I. Licensing examinations

Act 1259 of 2001 amended the FOIA by adding an exemption that allows state boards and commissions to “meet in executive session for purposes of preparing examination materials and answers to examination materials which are administered to applicants for licensure . . . .” Ark. Code Ann. § 25-19-106(c)(5)(A). Also, boards and commissions “are excluded from [the FOIA] for the administering of examinations to applicants for licensure.” Id. § 25-19-106(c)(5)(B). Similar provisions had previously been enacted with respect to particular licensing agencies. E.g., Ark. Code Ann. § 17-100-203(a)(3) (allowing executive sessions of Board of Examiners in Speech-Language Pathology and Audiology to “prepare, approve, grade, or administer examinations”).

J. Litigation, pending litigation or other attorney-client privileges

The FOIA does not permit an executive session to discuss pending litigation, Ark. Op. Att’y Gen. Nos. 96-372, 95-360, and the attorney-client privilege does not qualify as an exemption that would allow such a session. Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968). Moreover, the governing body’s attorney is not included in the list of persons who may attend an executive session held pursuant to the personnel exemption. Ark. Code Ann. § 25-19-106(c)(2). See Ark. Op. Att’y Gen. No. 85-181. The Attorney General has also opined that a lawyer may not attend an executive session held under the authority of another statute, such as the provision authorizing closed meetings for student disciplinary matters. Ark. Op. Att’y Gen. No. 87-478. This conclusion is highly dubious because Section 25-19-106(c)(2) deals only with those who may attend a closed meeting to discuss personnel matters. If a governing body meets in executive session pursuant to the FOIA’s licensing exemption, Ark. Code Ann. § 25-19-106(c)(5), or a specific statute that qualifies as an FOIA exemption, the body should, in its discretion, be able to permit attorneys (and others) to attend. See Ark. Op. Att’y Gen. No. 96-009 (parents may attend closed school board meeting held for the purpose of discussing a student’s expulsion).

K. Negotiations and collective bargaining of public employees

1. Any sessions regarding collective bargaining

If negotiations take place between employee representatives and the staff of a public entity, the FOIA’s open meetings requirement does not apply because a “governing body” is not involved. Ark. Op. Att’y Gen. No. 79-169 (negotiations between school administrators and teacher representatives not subject to FOIA).

2. Only those between the public employees and the public body

If the negotiations occur at the “governing body” level, the meeting is open. See Ark. Op. Att’y Gen. No. 79-169 (suggesting that negotiations involving at least two members of the governing body). The FOIA’s personnel exemption does not apply to discussions of general salary matters, an across-the-board pay increase, or overall performance of employees. Ark. Op. Att’y Gen. Nos. 91-070, 77-144. Likewise, it should be inapplicable to a collective bargaining session.

The Post Prison Transfer Board must conduct open meetings and make public its findings for each inmate eligible for parole. However, the board’s interviews with inmates may be closed to the public. Ark. Code Ann. § 16-93-615(a)(4)(A) (codified by Act 570 of 2011, formerly Ark. Code Ann. § 16-93-206(a)).

M. Patients, discussions on individual patients

Because matters involving patients are not exempted by statute, the meeting must be open to the public. Keep in mind, however, the FOIA’s open meetings requirement generally applies only to a “governing body” of an entity subject to the act.

N. Personnel matters

1. Interviews for public employment

The FOIA exempts meetings at which the “employment [or] appointment . . . of any public officer or employee” is considered. Ark. Code Ann. § 25-19-106(c)(1). Thus, a body may meet in executive session to screen and review applications for a position, Ark. Op. Att’y Gen. Nos. 94-339, 93-403. However, a candidate may be interviewed in a closed meeting only if he or she is being considered for “the top administrative position in the public agency, department, or office involved.” Ark. Code Ann. § 25-19-106(c)(2)(B). Persons applying for lesser jobs apparently cannot be interviewed by the governing body in a closed session.

2. Disciplinary matters, performance or ethics of public employees

The FOIA’s personnel exemption permits, but does not require, an executive session to consider the “promotion, demotion, [or] disciplining of any public officer or employee.” Ark. Code Ann. § 25-19-106(c)(1). Thus, a governing body may meet in executive session to consider disciplining an employee, Ark. Op. Att’y Gen. No. 81-213; to review an employee’s performance, if that review may lead to demotion or changed compensation, Ark. Op. Att’y Gen. No. 88-058; or to take a non-binding “vote of confidence” with respect to an employee, if the purpose of the meeting is to determine whether disciplinary action will be taken, Ark. Op. Att’y Gen. No. 91-280. Other statutes may also provide for closed meetings. E.g., Ark. Code Ann. § 6-17-208(b)(1)(C)(ii) (school board meeting to hear appeal of employee grievance “shall be open or closed at the discretion of the employee”); § 25-17-208(b) (meetings to consider certain personnel matters by boards and commissions whose members receive no compensation).

3. Dismissal, considering dismissal of public employees

A governing body may meet in executive session to consider the “employment, appointment . . . or resignation of any public officer or employee.” Ark. Code Ann. § 25-19-106(c)(1). Although the discharge or dismissal of an employee is not specifically mentioned in the act, the Attorney General has opined that such action is “by necessity encompassed in employment, appointment, or resignation.” Ark. Op. Att’y Gen. No. 81-213. Other statutes may also provide for closed meetings. E.g., Ark. Code Ann. § 6-17-1509(c)(2)(A) (school board hearing under Teacher Fair Dismissal Act “shall be private unless the teacher or the board shall request that the hearing be public”); § 25-17-208(b) (meetings to consider certain personnel matters by state boards and commissions whose members receive no compensation).

O. Real estate negotiations

When the General Assembly was debating the FOIA in 1967, an amendment was offered in the House to permit executive sessions for negotiations involving the purchase of real estate. The House initially agreed to the amendment but subsequently changed its mind and expunged the vote. Ark. Legis. Digest, 66th General Assembly, at 87, 91 (1967). During the 2001 legislative session, a bill to permit closed meetings for discussing “the purchase, sale or lease of real property” died in committee. See S.B. 589, 83d General Assembly (May 14, 2001); see also Harris v. City of Ft. Smith, 359 Ark. 355, 197 S.W.3d 461 (2004).

P. Security, national and/or state, of buildings, personnel or other

Because these matters are not exempted by statute, the meeting must be open to the public. However, the FOIA’s open meetings requirement generally applies only to a “governing body” of an entity subject to the act. The FOIA’s personnel exemption applies only when individual employees are being discussed and thus would not reach a meeting to consider matters such as building or personnel security that affect all employees. See Ark. Op. Att’y Gen. Nos. 91-070, 77-144 (personnel exemption does not apply to general salary matters, an across-the-board pay increase, or overall performance of employees).

Q. Students, discussions on individual students

A school board may meet in executive session in student expulsion cases if requested by the parent or guardian of the student. Though the board may hear testimony and deliberate in private, it must reconvene in public to vote. Ark. Code Ann. § 6-18-507(d)(2). See Ark. Op. Att’y Gen. Nos. 96-009, 87-478. This statute provides for an executive session only in the case of expulsion hearings, and a school board must meet in public when considering an appeal from a student who has been suspended. Troutt Brothers Inc. v. Valley View School Dist., CIV-2000-343(F) (Craighead County Cir. Ct., July 2, 2000). An executive session is not allowed simply because the school board will consider educational records that are exempt from disclosure under Section 25-19-105(b)(2) of the FOIA. Ark. Att’y Gen. No. 97-298. Moreover, because the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, neither qualifies as an exemption nor supersedes the FOIA under the Supremacy Clause, it does not permit a school board to hold a closed meeting to discuss the records of a particular student or former student. Id.

IV. Procedure for asserting right of access

A. When to challenge

1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

The FOIA does not provide a procedure by which a citizen may request that the governing body allow him to attend an upcoming meeting, and the act does not require that such a request be made. Moreover, a premeeting request is virtually impossible if the agency does not provide an agenda outlining the topics for discussion and its plan to hold a closed session. As noted above, the FOIA’s notice provisions do not require that an agenda be included with the notice of the meeting. Nonetheless, a citizen wishing to challenge a closed meeting should object as soon as he is aware of the governing body’s intention to hold an executive session. Otherwise, the governing body may be able to argue that the citizen has not exhausted his administrative remedies. Exhaustion is required when a plaintiff requests invalidation of the action taken at the closed meeting or a declaratory judgment. Rehab Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency Inc., 285 Ark. 397, 687 S.W.2d 840 (1985). If a citizen has advance notice of the planned executive session and its purpose (as would be the case when a detailed agenda is available), he can object prior to the meeting. If rebuffed by the governing body, he can then seek injunctive relief, a declaratory judgment, or possibly a writ of mandamus.

2. When barred from attending

If the citizen learns of the executive session at the meeting itself (e.g., when the announcement of a closed session is made), prospective relief is out of the question. However, the citizen should register his or her objection and argue that an open meeting is required. If a post-meeting challenge is then made under the FOIA, he or she will have exhausted administrative remedies and may seek a declaratory judgment or invalidation of the action taken at the meeting.

B. How to start

1. Where to ask for ruling

a. Administrative forum

The citizen should first raise this issue with the governing body itself, thereby preserving the right to sue for a declaratory judgment or invalidation. No procedures are set out in the FOIA, but if time permits, it is advisable that the request for an open meeting be in writing and set forth the reasons why the meeting must be open. Arkansas does not have a “FOI Commission” or similar agency.

b. State attorney general

Advice might also be sought, by telephone if necessary, from the Attorney General’s Office. Calls should be directed to the Opinions Division at (501) 682-5086 or toll-free at 1-800-482-8982. Sometimes an informal evaluation of the situation by the Attorney General’s Office will convince a governing body to open a meeting. However, presentation of the matter to the Attorney General is not required.

c. Court

If a state agency is involved, an FOIA suit must be brought in Pulaski County circuit court or the circuit court of the judicial district in which the plaintiff resides. If any other government body or a private entity is involved, venue is proper only in the circuit court of the district in which the entity is located. Ark. Code Ann. § 25-19-107(a); ACORN v. Jackson, 263 Ark. 67, 562 S.W.2d 589 (1978).

2. Applicable time limits

The FOIA contains no time limit for challenging an agency’s action. If judicial relief is sought, the general five-year statute of limitations apparently applies. See Ark. Code Ann. § 16-56-115. However, if the plaintiff seeks invalidation of the action taken at the closed meeting, it is unlikely that the court would permit this remedy if there has been a considerable passage of time between the meeting and the filing of the suit. See Rehab Hosp. Servs. Corp., v. Delta-Hills Health Sys. Agency Inc., 285 Ark. 397, 687 S.W.2d 840 (1985).

3. Contents of request for ruling

4. How long should you wait for a response

The FOIA is silent on the matter. There being no fixed time frame, a reasonableness standard should be used. If the time for the meeting is drawing near and no response for the governing body has been received, immediate judicial relief should be sought. In such circumstances, the court should treat the agency’s failure to respond as a denial and hold that administrative remedies have been exhausted. Alternatively, the court could conclude that exhaustion is not required when there has been undue delay on the part of the agency, for in that situation exhaustion is futile. See Bell v. Adams, 243 Ark. 895, 422 S.W.2d 691 (1968).

1. Who may sue?

2. Will the court give priority to the pleading?

The FOIA requires the court to “fix and assess a day the petition is to be heard” within seven days of its filing. Ark. Code Ann. § 25-19-107(b). This provision is probably unenforceable in light of a court’s inherent authority to control its docket. See McConnell v. State, 227 Ark. 988, 302 S.W.2d 805 (1957). In Orsini v. State, 340 Ark. 665, 13 S.W.3d 167 (2000), the Supreme Court left open the question whether Section 25-19-107(b) “requires that a hearing be set within seven days of the FOIA request or actually conducted within that time frame,” as the circuit court had done neither. However, the Supreme Court emphasized that “this section of the FOIA sets a policy in favor of expeditious hearings on all FOIA requests.” Id. at 668, 13 S.W.3d at 169.

4. What issues will the court address?

a. Open the meeting

If the suit is filed prior to the meeting, the court may order the governing body to hold an open session or issue a declaratory judgment that a closed meeting would violate the FOIA. See Ark. Code Ann. § 25-19-107(c).

b. Invalidate the decision

If suit is filed after the meeting, the court may invalidate agency action taken at a meeting that was closed in violation of the FOIA or, in some situations, if proper procedures were not followed.

(1) “No resolution, ordinance, rule, contract, regulation, or motion considered or arrived at in executive session will be legal unless, following the executive session, the public body reconvenes in public session and presents and votes on the resolution, ordinance, rule, contract, regulation or motion.” Ark. Code Ann. § 25-19-106(c)(4). Failure to comply with this provision can lead to invalidation of the action taken in the closed session. Yandell v. Havana Bd. of Educ., 266 Ark. 434, 585 S.W.2d 927 (1979).

(2) The Supreme Court has held that invalidation is also available when a meeting has been closed in violation of the FOIA. Rehab Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency Inc., 285 Ark. 397, 687 S.W.2d 840 (1985). However, this remedy is not to be employed routinely. Depoyster v. Cole, 298 Ark. 203, 766 S.W.2d 606 (1989), overruled on other grounds byHarris v. City of Ft. Smith, 366 Ark. 277, 234 S.W.3d 875 (2006). Invalidation is available only if administrative remedies have been exhausted, the plaintiff seeks to vindicate the public interest rather than private concerns, and the FOIA violation is substantial. Rehab Hospital, 285 Ark. 397, 687 S.W.2d 840.

(3) It is not clear whether invalidation will be available for other types of FOIA violations, such as failure to give notice, inadequate notice, refusal to permit tape-recording of the meeting, or the presence at an executive session of persons other than those specified by statute. However, in Depoyster v. Cole, 298 Ark. 203, 766 S.W.2d 606 (1989), overruled on other grounds byHarris v. City of Ft. Smith, 366 Ark. 277, 234 S.W.3d 875 (2006), the court held that invalidation was inappropriate where a governing body had used unsigned ballots in voting. Moreover, a pre-Rehab Hospital case suggests that allowing unauthorized persons to attend a meeting closed under the FOIA’s personnel exemption is a “procedural irregularity” that does not affect the validity of the governing body’s action. Commercial Printing Co. v. Rush, 261 Ark. 468, 549 S.W.2d 790 (1977).

5. Pleading format

The normal rules of pleading that govern civil cases apparently apply in FOIA suits. See generally Rule 8, Ark. R. Civ. P. Arkansas is a “fact pleading” jurisdiction with requirements more stringent than those applicable in federal court. See Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981). More informal pleading may be permissible in FOIA cases, however, because the act refers to a “petition” that is to be filed in an “appeal” to the appropriate circuit court. Ark. Code Ann. § 25-19-107(a) & (b). There being no reported cases on this point, an FOIA plaintiff should follow the general pleading rules. Cf. Dauer v. Ponder, 274 Ark. 166, 623 S.W.2d 3 (1981).

6. Time limit for filing suit

The FOIA contains no time limit for filing a suit challenging the agency’s action. Accordingly, the general five-year statute of limitations apparently applies. See Ark. Code Ann. § 16-56-115. However, if the plaintiff seeks invalidation of the action taken at the closed meeting, it is unlikely that the court would permit this remedy if there has been a considerable passage of time between the meeting and the filing of the suit. See Rehab Hosp. Serv. Corp., v. Delta-Hills Health Sys. Agency Inc., 285 Ark. 397, 687 S.W.2d 840 (1985).

7. What court?

If a state agency is involved, an FOIA suit must be brought in Pulaski County circuit court or the circuit court of the judicial district in which the plaintiff resides. If any other government body or a private entity is involved, venue is proper only in the circuit court of the district in which the entity is located. Ark. Code Ann. § 25-19-107(a); ACORN v. Jackson, 263 Ark. 67, 562 S.W.2d 589 (1978).

8. Judicial remedies available

(1) Invalidation

(a) “No resolution, ordinance, rule, contract, regulation, or motion considered or arrived at in executive session will be legal unless, following the executive session, the public body reconvenes in public session and presents and votes on the resolution, ordinance, rule, contract, regulation or motion.” Ark. Code Ann. § 25-19-106(c)(4). Failure to comply with this provision can lead to invalidation of the action taken in the closed session. Yandell v. Havana Bd. of Educ., 266 Ark. 434, 585 S.W.2d 927 (1979).

(b) The Supreme Court has held that invalidation is also available when a meeting has been closed in violation of the FOIA. Rehab Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency Inc., 285 Ark. 397, 687 S.W.2d 840 (1985). However, this remedy is not to be employed routinely. Depoyster v. Cole, 298 Ark. 203, 766 S.W.2d 606 (1989), overruled on other grounds byHarris v. City of Ft. Smith, 366 Ark. 277, 234 S.W.3d 875 (2006).

(i) Invalidation is available only if administrative remedies have been exhausted, the plaintiff seeks to vindicate the public interest rather than private concerns, and the FOIA violation is substantial. Rehab Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency Inc., 285 Ark. 397, 687 S.W.2d 840 (1985).

(ii) The scope of the “substantiality” requirement is not certain. In Rehab Hospital, a telephone poll of members of the governing body had been conducted without notice and without any arrangements that would have allowed the press and public to “listen in.” Although this was a violation of the FOIA, the court held that it was insubstantial, since the body had previously met in an open session and voted to take the action later discussed and reconfirmed by telephone.

(iii) It is not clear whether invalidation will be available for other types of FOIA violations, such as failure to give notice, inadequate notice, refusal to permit tape-recording of the meeting, or the presence at an executive session of persons other than those specified by statute. However, in Depoyster v. Cole, 298 Ark. 203, 766 S.W.2d 606 (1989), overruled on other grounds byHarris v. City of Ft. Smith, 366 Ark. 277, 234 S.W.3d 875 (2006), the court held that invalidation was inappropriate where a governing body had used unsigned ballots in voting. Moreover, a pre-Rehab Hospital case suggests that allowing unauthorized persons to attend a meeting closed under the FOIA’s personnel exemption is a “procedural irregularity” that does not affect the validity of the governing body’s action. Commercial Printing Co. v. Rush, 261 Ark. 468, 549 S.W.2d 790 (1977).

(a) In pre-meeting cases, the court can enjoin the body from holding the upcoming meeting in private, or issue a declaratory judgment that a meeting would violate the FOIA.

(b) In post-meeting cases, the court can hold that the meeting was impermissibly closed (or that the FOIA had otherwise been violated) and enjoin the body from holding further meetings not in compliance with the act.

9. Availability of court costs and attorney's fees

(1) Under a 1987 amendment, attorneys’ fees and other “litigation expenses” are now available to a party who has “substantially prevailed” in an FOIA case. A fee award is discretionary, not mandatory. Ark. Code Ann. § 25-19-107(d). If the plaintiff prevails, the court may decline to assess fees and costs against the defendant if it finds that the defendant’s position was “substantially justified” or that “other circumstances make an award of these expenses unjust.” Id. If the defendant prevails, the court may make a fee award only upon a finding that the plaintiff initiated the action “primarily for frivolous or dilatory purposes.”

(2) A fee award to a successful plaintiff is not necessary in every case and is generally inappropriate unless the plaintiff substantially prevailed on the FOIA claim and the public officials’ actions were substantially justified. City of Little Rock v. Carpenter, 374 Ark. 551, 288 S.W.3d 647 (2008). See alsoHarris v. City of Ft. Smith, 366 Ark. 277, 234 S.W.3d 875 (2006). For many years, a finding that the defendant had acted arbitrarily or in bad faith was required, Depoyster v. Cole, 298 Ark. 203, 766 S.W.2d 606 (1989), but that standard was overruled in the Harris case.

(3) A defendant may recover attorneys’ fees and costs only if it substantially prevails and the action was initiated “primarily for frivolous or dilatory purposes.” Ark. Code Ann. § 25-19-107(d)(2).

(4) Attorneys’ fees and costs may not be assessed against the State or any of its agencies or departments, Ark. Code Ann. § 25-19-107(e)(1), though by statute, such an award may be made against the State in FOIA cases involving the Hazardous Waste Management Act, Ark. Code Ann. § 8-7-204(j). The Court of Appeals has held in George v. Department of Human Services, 88 Ark. App. 135, 195 S.W.3d 399 (2004), that state officers and employees are within the statute’s exemption from fees for state departments and agencies. A suit against a state officer or employee in his or her official capacity is equivalent to a suit against the state agency or department for which the named defendant works. Id. at 139-40, 195 S.W.3d at 402. The court reasoned that an officer or employer may only be sued in an official capacity because he or she has administrative control over public records only in an official capacity. Id. at 140, 195 S.W.3d at 402. This reasoning might be mistaken, as it flies in the face of the plain language of the FOIA. Cf. Hafer v. Melo, 502 U.S. 21, 25 (1991) (explaining that an individual-capacity action under 42 U.S.C. § 1983 “seek[s] to impose individual liability upon a government officer for actions taken under color of state law”). The criminal penalties of the FOIA pertain to state officers and employees; had the legislature intended to immunize them against civil remedies, it could have done so.

10. Fines

The FOIA contains no provisions for civil penalties or forfeitures. However, a person who negligently violates the FOIA is guilty of a Class C misdemeanor and can be fined up to $500. Ark. Code Ann. §§ 5-4-104, 5-4-201, 5-4-401, 25-19-104.

11. Other penalties

Negligent violation of the FOIA is a criminal offense, a Class C misdemeanor. Ark. Code Ann. § 25-19-104. Upon conviction, the defendant can be punished by a fine of no more than $500, a jail term of up to 30 days, or both. Ark. Code Ann. §§ 5-4-104, -201, -401. Criminal prosecutions for FOIA violations are relatively infrequent but do occur. For example, the mayor of Hartford was convicted in Greenwood Municipal Court for participating in discussions about matters other than personnel issues during an executive session of the city council. The municipal court ordered the mayor to read the FOIA and to attend a seminar on the act. See Amy Sherrill, Judge rules mayor ran afoul of FOI, Southwest Times Record, July 20, 2000. The FOIA formerly expressly allowed sentences of “appropriate public service or education, or both,” alternatively to fine or jail term, but that language was deleted with implementation of a legislative overhaul of criminal code provisions in 2005.

D. Appealing initial court decisions

1. Appeal routes

Until recently, FOIA cases were appealed directly to the Supreme Court. Under the Court’s present rules, the appeal may be heard in the first instance by the Court of Appeals. Unless a case poses a question of state constitutional law or falls into certain categories not relevant here, appellate jurisdiction lies initially in the Court of Appeals. Ark. Sup. Ct. R. 1-2(a). However, any appeal is subject to reassignment by the Supreme Court, which will consider such factors as whether the case suggests a need to clarify the law or presents an issue of first impression, a question of statutory interpretation, an issue of substantial public interest, or an issue on which there is a perceived inconsistency among prior decisions. Ark. Sup. Ct. R. 1-2(b).

2. Time limits for filing appeals

Notice of appeal must be filed with the clerk of the trial court within 30 days of the entry of judgment, unless a post-trial motion is filed. In that event, the notice of appeal must be filed within 30 days of the trial court’s disposition of the motion or within 30 days of the date on which the motion is deemed disposed of as a matter of law. Ark. R. App. P.–Civ. 3 & 4. The record on appeal must be filed with the clerk of the Supreme Court within 90 days of the filing of the notice of appeal, though an extension of time may be obtained from the trial court. Ark. R. App. P.–Civ. 5.

V. Asserting a right to comment

A. Is there a right to participate in public meetings?

The FOIA “does not grant public participation in governmental meetings, but rather only provides that the public has a right to be informed of the actions of the governmental entity involved.” Ark. Op. Att’y Gen. (June 2, 1969). See also Ark. Op. Att’y Gen. No. 93-052. However, other statutes may confer a right of participation. For example, the county quorum court and other county boards required to hold open meetings must “adopt rules for conducting the meeting which afford citizens a reasonable opportunity to participate prior to the final decision.” Ark. Code Ann. § 14-14-109(b). See Ark. Op. Att’y Gen. Nos. 2000-106, 99-248, 95-230, 93-299, 93-052. If participation is not allowed when a statute so requires, action taken at the meeting may be subject to invalidation. Ark. Op. Att’y Gen. No. 2000-106.

B. Must a commenter give notice of intentions to comment?

Whenever a citizen has a statutory right to participate in a meeting, the agency can establish local rules regarding comments, as long as the citizen has a reasonable opportunity to participate. Ark. Op. Att’y Gen. Nos. 93-299, 93-052.

C. Can a public body limit comment?

Whenever a citizen has a statutory right to participate in a meeting, the agency can establish local rules regarding comments, as long as the citizen has a reasonable opportunity to participate. See Ark. Op. Att’y Gen. No. 93-299. For example, an agency can limit participation to only a specific time period during the meeting. Ark. Op. Att’y Gen. No. 93-052. An agency would violate the FOIA if the circumstances for public participation would allow for only “uninformed” comments. Ark. Op. Att’y Gen. No. 95-230 (discussing complex contracts made with private contractors).

D. How can a participant assert rights to comment?

If an agency allows for public comment, the participant should follow the rules of that agency concerning comments. The agency can establish local rules regarding participation, as long as the citizen has a reasonable opportunity to comment. Ark. Op. Att’y Gen. No. 93-052.

E. Are there sanctions for unapproved comment?

An agency or other entity allowing public comment can conduct its meetings “in an orderly manner” and “be free from unwarranted interference in the conduct of its affairs.” Ark. Op. Att’y Gen. No. 77-86. See also Ark. Op. Att’y Gen. No. 93-052. The agency can, therefore, adopt rules that would sanction a person who disrupts a meeting.

Appendix

Model letter for records request.

Custodian of Records

Agency/Address

Re: Request for Public Records under the Arkansas Freedom of Information Act

Dear _______________:

By this letter, I hereby request access under the Arkansas Freedom of Information Act, Ark. Code Ann. §§ 25-19-101 et seq., to the public records described below. I am a citizen of the State of Arkansas, residing at [address]. If you are not the custodian of these records, please advise me of that person’s name and address.

This request is to [inspect, copy, or receive copies of] the following records: [specify, in as much detail as possible, the records you want; identifying information, such as names, dates, and subject matter, should be included if known.]

I ask that you make these records available for inspection and copying [or provide copies of the records] within three working days of this request, as the Freedom of Information Act requires.

[Insert the following if you want copies of the records.] I would like copies of these records in [specify medium and format, e.g., photocopies, computer diskette with the documents in Microsoft Word]. [The custodian is required to provide copies in the medium in which the record is readily available and in any format to which it is readily convertible with the custodian’s existing software.] I agree to pay for the copies if the fees do not exceed $_____. If the copying charges are likely to be greater than this amount, I request that you contact me before making the copies.

[If copies are sought you may also wish to ask that the agency waive any copying charges.] Because these records are being sought for noncommercial purposes, I also request that you waive your customary copying fees. These records are to be used in connection with [scholarly research, news story, etc.], and waiver of copying fees would be in the public interest.

In the event that any of the requested records contain information exempt from disclosure, the records must be released with the exempt portions deleted. If my request is denied in whole or in part, I ask that you explain the basis for your action and specify the statutory exemption that provides for nondisclosure of the records or deletion of portions thereof.

Should you have any questions with regard to this request, please contact me at [daytime telephone number]. Thank you for your assistance in this matter.